Preamble

The House met at half-past Two o'clock

PRAYERS

[MR. SPEAKER in the Chair]

Oral Answers to Questions — ENVIRONMENT

Rate Support Grant

Sir David Price: asked the Secretary of State for the Environment whether he will propose amendments to the rate support grant formulae to accommodate the increasing transfer of long-stay geriatric, mentally handicapped, mentally ill and physically handicapped patients from National Health Service hospitals into community care.

The Parliamentary Under-Secretary of State for the Environment (Mr. William Waldegrave): The grant-related expenditure assessments used to calculate rate support grant entitlement already take account of the general responsibilities of local authorities, including caring for patients moving from hospital into community care.

Sir David Price: Is my hon. Friend aware that the present rate support grant arrangements do not sufficiently accommodate the movement of that category of patients to whom I refer in my question. Will he undertake to review the matter? Does he recognise that there is a case for introducing a specific grant for moving long-stay patients out of hospital into community care?

Mr. Waldegrave: My hon. Friend's question straddles the boundary of responsibilities between my Department and that of my right hon. Friend the Secretary of State for Social Services, but we shall certainly consider the matter. Many local authorities do not welcome an extension of the principles of specific grants, but I note what my hon. Friend says.

Mr. Meadowcroft: Does the Minister accept that the areas of greatest difficulty, where there are old and large long-stay hospitals, are under the severest pressure on their rates and from rate-capping? Does it not make a mockery of the wholly commendable proposal to get patients into the community when the cost of keeping patients in hospital is cheaper per head than when they come out and are cared for by the local authority, which may have its rates penalised?

Mr. Waldegrave: I am not sure that the statistics would show that the hon. Gentleman is right about that. These hospitals are not usually located in inner city constituencies, some of which may be troubled with rate-capping. Authorities face rate-capping because obvious economies can be made in the rest of their areas of spending.

Mr. Patrick Thompson: Bearing in mind that in my constituency of Norwich, North there are two hospitals, at Hellesdon and at Thorpe St. Andrew, with those categories of patients, and that in Norfolk the resources through joint funding are unlikely to match the challenge of community care, I hope that my hon. Friend will have further urgent talks with the local authorities about this great problem.

Mr. Waldegrave: My right hon. Friend is considering other aspects of joint funding and has announced a disregard from target expenditure for the increase in spending. Representations have been made on other aspects, which my right hon. Friend is still considering. I shall draw my right hon. Friend's attention to my hon. Friend's question.

Mr. Straw: Does the Minister recognise that two problems are raised by the question asked by the hon. Member for Eastleigh (Sir D. Price)? First, the grant-related expenditure assessments do not take proper account of the increasing impact of community care on local authority social services departments. Secondly, under the public expenditure White Paper, for which the Secretary of State is as much responsible as any other Cabinet Minister, social services expenditure will be forced to be cut by £111 million in real terms this year over last year, and by £232 million in real terms by 1986–87. How does the Minister expect local authorities to meet their increasing commitments when the total resources available for social services are being cut in real terms?

Mr. Waldegrave: The GREAs recognise the numbers in local authority care, but, I as I said to my hon. Friend the Member for Eastleigh (Sir D. Price), we shall discuss with our opposite numbers in other Departments whether the weightings that are given are adequate.

London Docklands Development Corporation

Mr. Spearing: asked the Secretary of State for the Environment when he next expects to discuss developments in London docklands with the chairman of the London Docklands Development Corporation.

The Under-Secretary of State for the Environment (Sir George Young): I am due to meet the next chairman and other members of LDDC's board on 29 June.

Mr. Spearing: When the Minister meets Mr. Benson and his colleagues, will he draw their attention to two matters that are causing considerable concern in my constituency and, indeed, in the docklands as a whole? The first is the alleged list of 70 sites which the LDDC wishes to acquire, including publicly owned sites and public open space, without apparent consultation with the public bodies concerned? Secondly, is the hon. Gentleman aware that, due to industrial location requests and doubts that have not been allayed by answers to recent written questions, some small local industrial firms are being prejudiced by the lack of interest shown by the LDDC, which is contrary to the reason why it was established?

Sir George Young: I shall be happy to discuss both those matters with Mr. Benson when I meet him later this month. With regard to the first matter, the amount of land that the LDDC wishes to acquire is a matter for it, taking into account the need to balance expenditure on land purchase and expenditure on carrying out works. I have


looked into the second matter as a result of the hon. Gentleman's questions. The corporation has acted with considerable sensitivity in relocating existing businesses in the docklands. It has successfully managed the relocation of 59 tenant businesses, thus preserving about 550 associated jobs. I shall raise the matter further, but I believe that the LDDC has done well.

Mr. Simon Hughes: Will the Under-Secretary also raise housing in this context? I welcome the considerable number of houses being built for sale, at a moderately low cost, in the docks, but there is a considerable demand for even cheaper housing for people who at the moment are local authority tenants, particularly people in north Southwark. Will the hon. Gentleman undertake to make sure that the price of the housing reflects the ability of people in the dockland boroughs to pay if they are to stay there as opposed to being forced to move out?

Sir George Young: I am grateful that the hon. Gentleman has recognised the valuable work that the corporation has done in housing. Over 1,000 homes have been completed on LDDC sites, and work is under way on another 2,000. The level of owner occupation in the area has doubled from 5 per cent. in 1981 to over 10 per cent. today. Much of the development is aimed in the first place at local residents. I know that the LDDC is anxious to make sure that a proportion of the schemes that it encourages are within the means of Southwark residents and residents north of the borough. I am happy to discuss the matter further with the corporation.

Rates Act 1984

Mr. George: asked the Secretary of State for the Environment if he proposes designating any authorities under the Rates Act 1984 at the same time as he issues provisional expenditure guidance for local authorities.

The Secretary of State for the Environment (Mr. Patrick Jenkin): Subject to parliamentary approval of the Rates Bill, I hope to be in a position to announce the principles of selection, the list of selected authorities and the proposed expenditure levels by the end of July. I cannot, however, commit myself at this stage to the exact timing of those announcements.

Mr. George: As the Secretary of State clearly has a hit list of authorities to be proceeded against, will he make an announcement of the names even sooner than he said? Is he aware that many local authorities are anxious to know what action will be taken against them, and that if he makes a statement to the House hon. Members on both sides will have an opportunity of questioning him?

Mr. Jenkin: I take note of the hon. Gentleman's question. The only point that I would make is that I am not sure how valuable it would be to announce the list of authorities and not announce at the same time the expenditure levels to which we would expect them to conform. However, I shall bear the hon. Gentleman's points in mind.

Mr. Skinner: Will the Secretary of State confirm, if he has not already done so, that a list is circulating in his Department that includes Tory-controlled Portsmouth as one of the councils that will be hit by the Government? It will be hit because it has been trying to give services to the community. Is it true that the reason why it is on the

list—people are trying to devise criteria to get it off the list—is that the council spends more money on one basis than does the council in Labour-controlled Sheffield? Will the right hon. Gentleman ensure that when the so-called hit list is drawn up it will not be devised in such a way as to allow Tory authorities such as Portsmouth to escape when there is an important by-election, when the Labour authorities against which the Government have a vendetta cannot escape?

Mr. Jenkin: The hon. Gentleman misses the point of the Rates Bill, which is to control the rates of high-spending authorities, to protect ratepayers. I have confirmed that Portsmouth is on some of the several draft lists—

Mr. Skinner: Is that right?

Mr. Jenkin: The hon. Gentleman knows that. It was said on the radio at lunchtime by my hon. Friend the Under-Secretary. Portsmouth is on some of the lists. I have no doubt that the ratepayers of Portsmouth will look forward to the protection from high rates that they will get, whatever political complexion the council may be.

Dr. Cunningham: The House will be grateful to the Secretary of State for at last admitting the truth about what is going on in his Department, having denied it in a letter to me earlier this week. Does not what the right hon. Gentleman has now said absolutely invalidate what the Prime Minister told the House yesterday at Question Time, when she said that it would be premature to devise a list before the Bill had even become an Act? Did not the Prime Minister mislead the House in saying that, in view of what the right hon. Gentleman has said? Do not all these squalid little manoeuvres in his Department — of sending for lists and then rejecting them because they do not contain particular local authorities—demonstrate beyond doubt the right hon. Gentleman's determination to use this legislation simply to ensnare, without any principle whatever, the councils which he wants to trap, and does this not completely debase the whole of local democracy?

Mr. Jenkin: The hon. Gentleman has got himself thoroughly ensnared with delusions of conspiracy. The Prime Minister would be justifiably critical of her Secretary of State for the Environment if he were not making advance plans, including a variety of criteria and a variety of lists, pending the passing of the Rates Bill. I assure the hon. Gentleman that when the principles are published they will be applicable to any authority, whatever its political control, which falls within those principles.

Mr. Adley: With the exception of the scowl on the face and the gnashing of the teeth by Mr. Livingstone, will my right hon. Friend say what changes will be seen or heard by Londoners after the local government reorganisation that he is planning takes place in London?

Mr. Jenkin: That matter will arise on a later question. A large number of Londoners will recognise the advantage to them of lower rates and a simpler, streamlined structure of government in London.

Basildon (Ministerial Visit)

Mr. Proctor: asked the Secretary of State for the Environment if he will make a statement on his recent visit to Basildon.

Mr. Amess: asked the Secretary of State for the Environment if he will make a statement about his recent visit to Basildon.

Mr. Patrick Jenkin: The visit was a valuable opportunity to see developments being carried out in partnership between the private sector and the new town development corporation. I was much impressed with what I saw.

Mr. Proctor: On his visit, did my right hon. Friend detect, apart from among the rate spenders, a determination on the part of the ratepayers to support the Government's policy on rating legislation? In particular, did he notice that the ratepayers in the Basildon district council area cannot wait to see the council rate-capped and controlled?

Mr. Jenkin: Basildon is, by any standards, a massive over-spender against two of the most obvious yardsticks; it is budgeting to spend 17 per cent. above its target and 70 per cent. above its grant-related expenditure in the current year. Perhaps it will not surprise the hon. Member for Copeland (Dr. Cunningham) to know that Basildon, too, appears on most of the lists that have been circulating in my Department.

Mr. Amess: When my right hon. Friend visited my constituency, did he notice that he entered a nuclear-free zone, a matter which is currently being investigated by the district auditor? Does the declaration of this zone mean that the leader of the local Marxist district authority contacted the leader of the Soviet Union to arrange that in the event of a nuclear war weapons would be so directed as to avoid Basildon?

Mr. Jenkin: After noting the example of those authorities which declare themselves nuclear-free zones, I am tempted to throw away all the locks on the doors and windows of my house and hang on the front gate a sign saying, "Burglar-free zone". I know that I shall be perfectly all right after that.

Dr. Cunningham: When all the petty abuse about Basildon council is set aside, is it not a fact that the Secretary of State did not arrange discussions with the council when he went to Basildon? Did not the Basildon electors just return the Labour party to office in the May elections, and will they not now notice the monumental contempt for the democratic processes that has been displayed by Conservative Members?

Mr. Jenkin: The leader of the Basildon council complained that he had not known of my visit although he had been informed of it beforehand by the chairman of the new town development corporation.

Dr. Cunningham: The right hon. Gentleman did not meet him.

Mr. Jenkin: No, I did not meet him, because he had led a deputation to my noble Friend Lord Bellwin only a few weeks previously and the whole subject of Basildon finance was discussed. I was there at the invitation of the private sector developer and of the new town development corporation under its distinguished chairman Dame Elizabeth Coker. I spent a most worthwhile and valuable morning.

Rate-capping

Mr. Loyden: asked the Secretary of State for the Environment what representations he has received from organisations representing the aged and the mentally handicapped about the Government's plans for rate-capping.

Mr. Waldegrave: My right hon. Friend has received a number of representations about the Rates Bill, including letters from Mr. Brian Rix, secretary-general of the Royal Society for Mentally Handicapped Children and Adults. My right hon. Friend has replied to them and, with permission, I will arrange for the text of his replies to Mr. Rix to appear in the Official Report. Mr. Rix has thanked my right hon. Friend for his letters.

Mr. Loyden: Does the Minister agree that as a result of the Government's policies virtually no section or group of society is protected against the vicious and relentless attack that is taking place on those authorities which provide such services? When will Ministers fight their own corner and say to the Prime Minister, "Enough is enough. Attacks on local authority services will endanger the most vulnerable groups in society which need the assistance of local authorities now and will need them in the future"?

Mr. Waldegrave: The corner that Ministers in this Department and others will fight is to ensure that the power and compulsion involved in taxation and rating are not wasted on frivolous expenditure. We stand for value for money and that is the corner that my right hon. Friend and all his colleagues will fight.

Mr. Alan Howarth: Does my hon. Friend agree that, in present circumstances, rate-capping has proved to be a regrettable necessity to prevent the abuse of power by some Labour-controlled authorities which have imposed enormous rate increases, with destructive effects, on their local economies? It is the disadvantaged in society, such as the aged and the mentally handicapped, who suffer from such practices, as well as from the inflation that is a consequence of excessive public expenditure.

Mr. Waldegrave: Of course, I agree with my hon. Friend. Local accountability is clearly not delivering a responsible balance whereby those who must pay have a sufficient say about spending. That is why central Government have had to step in to right the balance.

Mr. Wareing: Is the Minister aware that in a recent report commissioned by the Disablement Income Group it was found that it cost £61·50 a week in terms of care and loss of earnings for the average family to cater for a mentally handicapped person? To care for a mentally handicapped person is penalty enough. Is it not about time that the Government felt some compassion and ensured that the first people to benefit from the disregard are those who cannot cater for themselves and the families who have to cater for these poor, mentally handicapped people?

Mr. Waldegrave: The case that the hon. Gentleman makes shows why the Government have substantially increased the benefits for disabled people.

Mrs. Currie: Has my hon. Friend noticed that Derbyshire county council has increased the rates by 13 per cent. this year, and is apparently so flush with social workers that it can send one of them, from the most


important emergency duty team, to Greenham common? Strapped for cash, it nevertheless managed to find several hundred thousand pounds to put up, "Peace be with you" notices at the entrance to the county. Does my hon. Friend agree that, with better husbandry and a more careful choice of priorities, the elderly and the mentally handicapped would not suffer?

Mr. Waldegrave: I agree that when there are real needs, as the hon. Member for Liverpool, West Derby (Mr. Wareing) described, such frivolous expenditure is irresponsible and wasteful beyond belief.

Following is the text of the replies.

2 MARSHAM STREET



LONDON SWIP 3EB



01–212 3434



My ref: J/PSO/13479/84



Your ref:



17 May 1984

Dear Brian,

Thank you for your letter of 30 April.

I can confirm and assure you that there has been no change in the Government's policy towards services for mentally handicapped people. We continue to see the protection of services for the most vulnerable as a priority. "Care in Action", which was published in 1981, remains the general guidance to authorities on national policies and priorities in the health and personal social services, and all health and local authorities in England know that.

For its part, the Government has extended the scope of joint finance within the "Care in the Community" arrangements, to allow greater flexibility and continuing payments from health authorities to facilitate the movement of patients out of long stay hospitals. This should benefit services for mentally handicapped people.

At the local level, it is for the local authorities themselves to decide relative priorities between their various services within the need to restrain their overall spending, as I explained in my previous letter. They are best placed to judge local needs and none of us would want to change that. We expect them, in making their decisions on services, to have regard both to their statutory obligations, and to the guidance of national priorities I refer to above. I am confident that they have done and will continue to do so.

With kind regards



Yours ever



Patrick



PATRICK JENKIN

Brian Rix Esq CBE MA

2 MARSHAM STREET



LONDON SWIP 3EB



01–212 3434



My ref: J/PSO/12948



Your ref:



25 April 1984

Dear Brian,

I was very concerned to read your letter of 6 April, about the Rates Bill. I know that a number of voluntary organisations have been told that their funding, and the services they provide to the vulnerable people they serve, are at risk. It particularly saddens me to hear of Directors of Social Services talking of serious effects on services for mentally handicapped people.

Perhaps I should first explain what the Rate Limitation provisions of the Rates Bill set out to do. A small number of local authorities have been spending far more than we have allowed for in our public expenditure plans. It is an important part of the Government's policy to restrain public expenditure in the interests of low inflation and the creation of a better climate for genuine economic recovery. We believe that only in this way can we afford to sustain the services which we would all like to see for all of those who need them. The present level of overspending by some local authorities, and the excessive rate increases which result, are a serious concern for us in meeting our objectives.

The rate limitation process will enable us to select about 12 to 20 of the highest spending councils and put an overall limit on the rate or precept they can raise.

Those who oppose this policy for a variety of reasons have sought to foster important misconceptions about the consequences. Firstly, they have suggested that the rate limited authorities will be forced to make excessive reductions in their present spending levels. Secondly, they have argued that the only course open to authorities in making savings is to cut into essential services.

Both these allegations are unfounded. The reductions in spending we shall be looking for will be reasonable and attainable in a single year. The Association of Directors of Social Services seem to have argued that we shall be looking immediately to bring authorities down to the level of their Grant Related Expenditure. I have to say that is not our intention.

As to the implications for services, we have to remember that we are talking of authorities who are spending relatively much more than other authorities providing a good standard of service — including active support of voluntary organisations — at lower cost to the ratepayers. They have plenty of scope for savings. There will be no question of their putting statutorily required services at risk.

Furthermore, many of the authorities we are concerned with have a recent history of significant increases in expenditure—even allowing for inflation. They have been recruiting more staff and inventing totally new activities unrelated to their statutory responsibilities at a time when other authorities have been making significant savings; and, at the same time, they have been protesting about shortage of funds for their essential services. There is no reason why these authorities should not be able to make significant savings, not least through increasing efficiency, without in any way cutting into the essential services they provide.

I know there is also concern among some voluntary organisations that rate capped authorities may seek to make their economies by cutting back on support for the voluntary sector. Certainly decisions on where savings are to be achieved within the overall rate limit set must be for the local councillors to decide; they are best placed to take a view on priorities. But we, in the Government, are convinced of the value of voluntary organisations in providing flexible and cost effective services for the local community and in giving the opportunity for people to make a contribution to those communities; our record confirms that. I know that many local authorities take the same view. My own belief is that, once the heat of the argument over this Bill has died down, the selected authorities will settle down to make the necessary economies without destroying essential services. When they do so I am sure they will want to continue to recognise the benefits which a constructive programme of support to the voluntary sectors offers to that process.

With kind regards



Yours ever



Patrick



PATRICK JENKIN

Brian Rix Esq CBE MA

Housing Improvements and Repairs

Mr. Latham: asked the Secretary of State for the Environment what advice he is giving to local authorities regarding the need to sustain their housing improvement and repair grant programmes.

The Minister for Housing and Construction (Mr. Ian Gow): We are enouraging local authorities to maintain a high level of investment in the repair and improvement of the housing stock. But it is their responsibility to make decisions about local housing needs and priorities.

Mr. Latham: As Ministers have rightly pointed out that substantial sums are still available for this purpose in this financial year, what advice or assistance can my hon. Friend give to the significant number of local authorities which have discontinued giving grants?

Mr. Gow: It is up to each local authority to determine its own priorities. For the total allocation of money for


improvement grants, I remind my hon. Friend that in 1982–83 the total amount spent was £430 million. When the figures for the past financial year become available, I expect that the figure will be almost double—in marked contrast to the sum of £90 million, which was the figure for the last year of the previous Labour Government.

Mrs. Renée Short: Does the Minister agree that what local housing authorities most need now is a planned programme for several years of maintenance, repair and renewal of old housing stock, for which they need resources? Is he prepared to provide those resources so that local authorities can carry out such a programme?

Mr. Gow: I shall bear in mind what the hon. Lady said when we make our allocations under the housing investment programme for next year.

Mr. Heddle: Did my hon. Friend read with alarm in The Times of yesterday the decision of Glasgow city council to demolish, in the Gorbals, 756 flats that were built 12 years ago for £8 million, rather than enter into an agreement with a firm of building contractors to revivify them on an improvement for sale basis?

Mr. Gow: I saw that report, but the matter falls within the responsibility of my right hon. Friend the Secretary of State for Scotland.

Mr. Allan Roberts: Will the Minister admit that local authorities cannot sustain house improvements and renovation programmes if the Government introduce a moratorium on local authority capital expenditure? Do the Government plan to introduce that moratorium? If they do, will it include a moratorium on improvement and repair grants? Have not the Government already attacked needy owner occupiers by cutting back the moneys for improvement grants?

Mr. Gow: The hon. Gentleman's question is wholly hypothetical.

Mr. Stanbrook: I welcome the steps that the Government are taking to assist owners of defective housing in the public sector, but will my hon. Friend bear in mind that thousands of houses which were purchased in the private sector have been deemed defective, but for which Government proposals provide no remedy? Is he aware that more than 80 of my constituents live in houses which they are unable to sell because building societies will not advance money on them? How can the Government assist those people?

Mr. Gow: I fully understand my hon. Friend's point, about which he has also written to me. The Government believe that they have a particular responsibility for houses that originate in the public sector. It would be a major departure to say that the Government should accept similar responsibility for houses that have always been in the private sector.

Mr. Cartwright: Is the Minister aware that in the London borough of Greenwich 2,500 people expressed interest in repair grants, 400 people are on the approved waiting list and the council says that it has resources in the current financial year to make only 30 grants? Does he think it reasonable to raise expectations, if the resources are not made available?

Mr. Gow: I have raised no false expectations. The borough must determine its own priorities according to its perception of its needs. I hope that the borough will continue to give proper priority to improvement grants.

Dr. Hampson: Does my hon. Friend intend to increase the flow of improvement grants and urban development grants to the private sector to offset a drop in the level of its renovation activities, especially in inner cities, resulting from the imposition of VAT on its activities? Has he pointed out to the Chancellor of the Exchequer that many hon. Members believe that it makes little sense to impose a tax that results in less private investment and causes increased public investment?

Mr. Gow: We are reviewing our improvement grant policy to make certain that grants are available for the properties and the people in the greatest need. My hon. Friend will know that VAT has always been payable on building repairs and maintenance, which account for a substantial proportion of improvement grants.

Mr. John Fraser: Does the Minister recognise that although last year improvement and repair grants were at a record level, because of the 90 per cent. grant, this year the cut in the level of grant to 75 per cent., the discontinuance of grant because of financial pressures by many local authorities, the existence of rate penalties, the forthcoming rate-capping and the imposition of 15 per cent. VAT on house alterations, including damp-proof coursing, are likely to cause a disastrous slump in housing improvement and repairs, to the great detriment of our housing stock, much of which is in the hands of rather poor owner-occupiers? Will he at least ask the Chancellor to give with one hand what he has taken away with the other from the improvement grant sector?

Mr. Gow: There is a certain impudence in the hon. Gentleman's question, since in the last year of the Labour Government, which he adorned, only £90 million was made available to the entire improvement grant sector.

London Docklands (Stolport)

Mr. Gerald Howarth: asked the Secretary of State for the Environment when he now expects to receive the report of the inspector into the Stolport site in London docklands; and if he will make a statement.

The Parliamentary Under-Secretary of State for the Environment (Mr. Neil Macfarlane): The inspector's report has just been received in my Department and is now being studied. It would not be appropriate for me to comment on the case now, but I shall issue a decision on the matter as speedily as possible.

Mr. Howarth: Does my hon. Friend agree that this privately funded project will act as a vital catalyst in securing investment and jobs in the derelict area to the east of the City, that it will take some pressure off Heathrow and that an early, favourable decision is needed? Will he try to announce his decision to the House before the recess?

Mr. Macfarlane: I understand the issues involved, which will be drawn to my right hon. Friend's attention. The inquiry was long and raised many complex issues. I cannot forecast how long it will take to consider them, but I am arranging for the case to be treated with the utmost urgency.

Mr. Simon Hughes: When considering the report, will the Minister bear in mind that a key opportunity in the docklands is for sporting activity, especially on water, in the docks and on the river? Will he condemn comprehensively the attempt that will be made this evening by Southwark council to prevent the director of leisure and recreation from coaching the Olympic team later this year as being the last thing we want if we are trying to encourage sport in our inner cities, and encourage people to work for the better sporting prowess of the youngsters of inner London?

Mr. Macfarlane: I agree that we should do everything we can to encourage sport in our inner cities and, indeed, anywhere. That is why my hon. Friend the Under-Secretary of State—the hon. Member for Ealing, Acton (Sir G. Young)—and the Sports Council are considering closely the Olsen shed project in the docklands. There are many complex and interrelated issues, all of which will have been addressed by the inspector.

Mr. Squire: Does not the action of Southwark council underline the wisdom of the Government in setting up the LDDC, and does my hon. Friend agree that it has achieved much success under its new structure?

Mr. Macfarlane: I fully endorse my hon. Friend's comments. It is almost the only way in which we can make progress in that derelict part of London.

Mr. Spearing: Is the Minister aware that the proposed Stolport is in my constituency? Is he also aware that throughout the inquiry, as far as I know—perhaps he will confirm it—the noise and safety regulations, and the inspector's recommendations in that regard, were based on the characteristics of the de Havilland dash 7 aeroplane? If the Minister wishes to change those recommendations or substitute them for his own, which might be more accommodating to the dash 8 or other noisier aircraft, will he undertake to give any such reasons to the House when he makes his decision?

Mr. Macfarlane: I note what the hon. Gentleman says. Many complex issues are involved here. The Civil Aviation Authority, my right hon. Friend the Secretary of State for Transport and the Department of the Environment must make many decisions during the next few weeks. I shall ensure that the House is fully informed.

Mr. Soames: When talking about planning, will my hon. Friend undertake a review of the odious system whereby county councils grant themselves planning permission for pecuniary advantage to themselves? Does he agree that such decisions bring the entire system into disrepute?

Mr. Macfarlane: I admire my hon. Friend's ingenuity in introducing that on this subject. While we might all have some sympathy with certain examples, I do not want to stray too wide, Mr. Speaker, and incur your wrath.

Gipsies

Mr. Greenway: asked the Secretary of State for the Environment if he has issued any recent guidance to local authorities concerning the provision of gipsy sites; and if he will make a statement.

Mr. Macfarlane: Comprehensive guidance on provision of sites is contained in the Department's circular

28 of 1977; it has been supplemented from time to time. The most recent guidance was given in a booklet issued in June 1982 on the management of local authority sites.

Mr. Greenway: Is my hon. Friend aware of efforts by the Labour party, aided and abetted it would appear by some parts of the Department of the Environment, to force the establishment of gipsy sites at a cost of £1 million for 15 families—many of whom are didicois and not gipsies — at Kensington road or Ruislip road in my constituency, which sites are not suitable and where the local people bitterly resent the suggestion? Will my hon. Friend assist me and Ealing council in our efforts to have such a site, if we must have it, at Park Royal, where no residents would be affected?

Mr. Macfarlane: I understand the anxiety and upset which this subject can arouse. Indeed, I expect many hon. Members have similar anxieties on occasion about gipsy sites in their constituencies and the problems that surround them. While I understand the background of the case, obviously the selection of a site is very much for the local authority. My hon. Friend is sufficiently experienced to know that there are constitutional responsibilities for the local authority and ultimately, perhaps, for my right hon. Friend.

Mr. Rowe: Is my hon. Friend aware that my constituency suffers from constant visitations by gipsies, many of whom are unable to find sites within the London boroughs because the boroughs are shamefully neglecting their responsibility to provide sites?

Mr. Macfarlane: My hon. Friend and many other colleagues who represent constituencies in Kent, and mid-Kent in particular, have had a close dialogue with my officials to try to resolve some of these problems.

Mr. Cartwright: Will the Minister also consider the position of council tenants at Thamesmead who live in a borough that has provided 54 caravan sites for travellers and yet have to suffer regular invasions from travellers simply because there are not sufficient sites in other parts of Greater London?

Mr. Macfarlane: The question of site provision certainly involves my Department. Obviously any causes of misery, and the problem of travellers who arrive on pitches that are not recognised, are primarily matters for the local authority and the local police.

Sir Anthony Grant: Is my hon. Friend aware that the gipsy problem is getting out of hand? An answer I received from his Department only the other day demonstrated that nearly twice as many people were taking advantage of the legislation as had been envisaged when it was passed. The definition of a gipsy is completely inadequate. The people who are causing the trouble in Cambridgeshire, and no doubt in other constituencies, are not true Romanies. They are layabouts or scrap dealers. Will my hon. Friend please receive a deputation of hon. Members who have this problem in their constituency to see what can be done?

Mr. Macfarlane: My earlier judgment of this as a matter that arouses much hostility and anger in hon. Members was probably more accurate than I realised. Certainly I shall consider any overtures that my hon. Friend wants to make. Officials in my Department have been working closely with officials from Cambridgeshire county council and we shall continue with that.

Ionizing Radiation Levels

Dr. Mawhiney: asked the Secretary of State for the Environment what responsibilities his Department has for continuing monitoring of air and sea ionizing radiation levels within the United Kingdom.

Mr. Waldegrave: My Department, together with the Scottish and Welsh Offices, is responsible within Great Britain for co-ordinating monitoring of environmental pathways for radioactive pollution. Similar responsibility is exercised by the Department of the Environment of Northern Ireland. These responsibilities are exercised in close collaboration with the Ministry of Agriculture, Fisheries and Food and the National Radiological Protection Board.

Dr. Mawhinney: Will my hon. Friend accept that, because I am a professional radiation biologist, I understand that the populace are not in danger when exposed to normal environmental levels of radiation? Will he also accept that we are not getting that message across to our fellow citizens? Will he redouble the efforts of his Department to try to find a way to communicate the facts better, in order to ease the anxieties of many of our fellow citizens?

Mr. Waldegrave: My hon. Friend is a formidable man with whom to discuss these issues. He is right. People forget that there is such a thing as natural background radiation and that human beings are naturally slightly radioactive. All the time we have to work to explain the facts and also to make clear the real dangers.

Mr. Campbell-Savours: Do the repeated references to cost-effective techniques in relation to environmental damage as laid out in the London summit declaration the other day indicate any renewed interest by the Government in the principle of ALATA — "as low as technically achievable" — for reducing nuclear discharges? When shall we see the translation of the words in the declaration into Government action.?

Mr. Waldegrave: The hon. Member will have studied closely what BNFL has said about discharges from Sellafield and will have welcomed its tone. It is better to consider the limits on what goes out rather than to worry too much about the words in the formulae. We must continue to ensure that the controls are tight.

Mr. Alexander: Does my hon. Friend agree that the publication of radiation statistics sometimes causes unnecessary anxiety in some communities? Does he agree also that, for tourist communities in particular, the precise level of danger, or lack of it, needs to be made known equally prominently?

Mr. Waldegrave: I agree with my hon. Friend, so long as he is not asking us not to be entirely open with the publication of the facts. We must publish all the facts, but both he and my hon. Friend the Member for Peterborough (Dr. Mawhinney) must help us to put across the message of what the real dangers are in the different circumstances.

Dr. Cunningham: Although it is true that emissions from the nuclear industry contribute less ionizing radiation than the natural background or diagnostic health X-rays, will the Minister encourage British Nuclear Fuels Ltd. to press ahead with all possible speed towards its aim of eliminating discharges to the marine environment? In the

meantime, when will the Secretary of State reply to my letter asking for a definition of "as low as reasonably achievable"?

Mr. Waldegrave: The hon. Gentleman knows that the courts may provide another forum where that is a matter for argument. The hon. Gentleman is right in the first part of what he said. I know that the Secretary of State welcomed the recent statement from BNFL.

Wildlife and Countryside Act 1981

Mr. Yeo: asked the Secretary of State for the Environment when Her Majesty's Government expect to conclude their considerations of proposals to end the three-month loophole in section 28 of the Wildlife and Countryside Act 1981.

Mr. Waldegrave: We are considering the various proposals that have been made, including the private Member's Bill introduced by the hon. Member for Rother Valley (Mr. Barron), in consultation with the other Government Departments concerned. We expect to be in a position to reach a view shortly.

Mr. Yeo: Does my hon. Friend agree that it is unsatisfactory for the owner of a site of special scientific interest to have three months in which to object to a proposed notification by the Nature Conservancy Council, because that period could be used by unscrupulous owners to cause irreparable and permanent damage?

Mr. Waldegrave: I well understand the argument, and Ministers are considering it.

Mr. Freud: Does the Minister agree that the whole effectiveness of the Wildlife and Countryside Act is called into question when, despite ministerial assurances, many acres of Halvergate marshes are being ploughed up? Will he take power under article 4 of the general development order to stop these works?

Mr. Waldegrave: I welcome the opportunity to comment on Halvergate. When I referred to Halvergate earlier I was, perhaps rightly, criticised for using shorthand for those areas not far from Halvergate to which the Broads authority was offering management agreements. Those areas under such agreements are secure. However, 92 other acres, I am sad to say, are in danger. Article 4 action is for the Broads authority to take in the first instance. If it wanted to come to us to discuss it we should give the matter urgent consideration, but it has delegated planning powers to make such an order.

Mr. Kenneth Carlisle: Does my hon. Friend agree that the Wildlife and Countryside Act is a big step forward in protecting the countryside and that it was passed by a Conservative Government? However, does he accept that we have now had time to understand certain defects in the Bill and that if we are to give proper protection to the countryside the deficiencies must be remedied before long?

Mr. Waldegrave: We are considering the representations, such as those from my hon. Friend, which have been made to us on these points.

Mr. Spearing: With respect to the 92 acres near or on Halvergate to which the Minister referred, is it his opinion that the ploughing threat to which they may be subject at


the moment is due to the improved techniques of drainage, or to the price mechanism to which agriculture is now subject?

Mr. Waldegrave: There is no question but that the return from cereals growing is the principal issue, and is more important than drainage.

Mr. Budgen: Does my hon. Friend agree that this problem arises from the operation of the common agricultural policy in fixing the price levels for cereals and oil seed rape too high. Would it not be better to make representations to the Minister of Agriculture, Fisheries and Food rather than give further subsidies to landowners?

Mr. Waldegrave: It would be worth while for farmers considering ploughing in this sort of area to note that my right hon. Friend the Minister of Agriculture, Fisheries and Food is tackling these questions of over-production, and that the great expansion of cereal profitability may not go on for ever.

Dr. David Clark: Does the Minister not appreciate that the House is getting tired of the Government wringing their hands over countryside lost, and taking no action? May I remind the Minister of the categorical assurance that he gave the House in response to a question by my hon. Friend the Member for Linlithgow (Mr. Dalyell)? My hon. Friend asked:
Is Halvergate now safe?
The Minister replied:
I can assure the hon. Member that Halvergate is safe for a year."—[Official Report, 4 April 1984; Vol. 57, c. 954]
That is typical of the Government's attitude. May I ask the Minister again when he will take some action? When will he pick up the Bill lying on the Floor of the House in the name of my hon. Friend, the Member for Wentworth (Mr. Hardy), and will he have meaningful discussions with Opposition Members, who are prepared to help the Government to produce a sensible amendment to the Act to try to protect the countryside?

Mr. Waldegrave: On the latter point, I have had helpful discussions with the hon. Member for Wentworth (Mr. Hardy) and will be delighted to have discussions with the hon. Member for South Shields (Dr. Clark). I am not sure whether the hon. Gentleman heard what I said to the hon. Member for Cambridgeshire, North-East (Mr. Freud) when I remarked that in an oral answer I should have been more accurate. The land to which I was referring—and I make this clear today—was the land for which the Broads authority was offering agreements over which there were difficulties, which the House was debating at that time. Those agreements have all been made, and that remains the fact. There have been other losses elsewhere.

Council House Sales

Mr. Dubs: asked the Secretary of State for the Environment what recent representations he has received about the sale of council homes and flats other than to sitting tenants.

Sir George Young: My hon. Friend the Minister for Housing and Construction has received recent representations from councillors in the hon. Member's constituency. It is for local authorities to decide whether to sell vacant dwellings.

Mr. Dubs: When will the Minister understand that his encouragement of the policies of local authorities such as

Wandsworth council in selling council houses and flats to people not on the waiting list and to people not in urgent need is deeply offensive to the thousands of badly housed people in my area and elsewhere in the country, and is saying to those people, "There is no hope of decent housing for you in your lifetime."? Is it not time that we had a change of policy, starting with the Minister?

Sir George Young: The important thing is to ensure that empty houses are put to proper use. I understand that Wandsworth council gives some priority to council tenants under partnership or improvement for sale schemes in instances such as the ones that the hon. Member describes. Wandsworth council has raised £37 million in the last four and a half years by its policy of selling council houses, and this has enabled it to make faster progress with modernising its old stock and allocating improvement grants than would otherwise have been the case. That is why the policy that Wandsworth council is following makes sense.

Mr. Chope: Will my hon. Friend arrange for the details of the Wandsworth success story to be distributed to councils throughout the country, because a large number of council tenants who occupy flats and houses wish to buy houses and flats other than those that they occupy, and Wandsworth council has had a success story in satisfying their needs in excess of almost any other local authority in the country?

Sir George Young: My hon. Friend has done more than the Government could do in advertising the success of Wandsworth council and in promoting those policies for other local authorities which face similar problems.

Mr. Loyden: Does the hon. Gentleman not agree that the sale of council houses means that the better houses are sold off, leaving the substandard accommodation for council tenants? Is he not aware that, as a result of the no-build programme, those seeking rented accommodation in the public sector have to wait for years before they are accommodated?

Sir George Young: All the evidence is that those who buy their council houses in the circumstances described by the hon. Gentleman would not move anyway, and so those properties would not become available to those on the waiting list. On the other hand, the council has the benefit of the capital receipts, which it can then use to make faster progress with those who are on the the waiting list.

Mr. Michael Forsyth: Does my hon. Friend accept that the number of flats owned by Labour councils that remain vacant for a long time is a disgrace? Do Opposition Members not realise that many flats are impossible to let, although people are willing to buy them? We should congratulate those authorities which are selling them.

Sir George Young: My hon. Friend is quite right. No one benefits if local authority stock is simply left vacant. I urge those local authorities involved, which are mainly Labour-controlled, to look at schemes such as homesteading and improvement for sale, to ensure that that stock is put into good use and that some receipts accrue to the local authority.

South Humberside County Council

Mr. Leigh: asked the Secretary of State for the Environment what recent representations he has received advocating the abolition of South Humberside county council.

Mr. Waldegrave: My right hon. Friend has received four letters in the past six months advocating the abolition of Humberside county council—one from a student in Leeds, and three from a resident in Beverley.

Mr. Leigh: Given that it is said of Yorkshire and Lincolnshire that never the twain shall meet except by the unused Humber bridge — known locally as the McNamara bridge in honour of a Labour party by-election victory in the 1960s — what purpose does the county council serve? It is a creation of the 1970s, unloved by the inhabitants and inconvenient, in terms of local government services, for those who live near its borders.

Mr. Waldegrave: My hon. Friend will know that we are taking some steps in relation to local government reform. I am not sure whether we need to go much further at present. Under the Local Government Act 1972 it is the responsibility of the Local Government Boundary Commission for England to review the area, and if it considers change desirable to make proposals accordingly to my right hon. Friend the Secretary of State. We have no power to initiate the proposals.

Mr. Mason: How many organisations within south Yorkshire have made representations to the Minister for the abolition of the South Yorkshire county council? I guess that the answer is not many. Do the Government intend to persist with legislation designed to abolish the county councils next year?

Mr. Waldegrave: The answer to the last question is yes. I should add that my right hon. Friend the Secretary of State has put in the Library details of the number of representations made for and against abolition.

Departmental Staff (Ethnic Minorities)

Mr. Janner: asked the Secretary of State for the Environment whether he is satisfied that ethnic minorities are not under-represented in his Department.

Sir George Young: No information is currently available about the proportion of ethnic minority staff in the Department as a whole. However, surveys are now being carried out in all Departments with offices in the north-west and Avon. I shall review the position when the results are available.

Mr. Janner: Is the Minister's failure to require his own Department to implement the recommendations of the Commission for Racial Equality on ethnic monitoring deliberate, or due to the fact that he does not care whether ethnic minorities are represented in his Department?

Sir George Young: If the hon. and learned Gentleman is referring to the CRE's code of practice, which has been approved by Parliament and came into effect on 1 April, I should tell him that the Department and the rest of the Civil Service carry out those recommendations.

Mr. Forth: Will my hon. Friend ensure that, in order to achieve efficient and effective Government, such things as merit and qualifications are fully taken into account when recruiting people to the public service?

Sir George Young: Yes, of course.

Mr. Favell: Is my hon. Friend satisfied that the ethnic minorities are not under-represented in the parliamentary Labour party?

Sir George Young: Happily, I have no parliamentary or ministerial responsibility for the activities of the Labour party.

Mr. Bill Walker: Is my hon. Friend aware that Scots represent 10 per cent. of the United Kingdom population, and that in the past they have usually enjoyed more than 10 per cent. of Government posts and jobs? Can he confirm that the Scots will not be disadvantaged in future because of the advantage that they have enjoyed in the past?

Sir George Young: I am not sure that the Scots are an ethnic minority.

Dr. Cunningham: Is it not important, in a plural society, to demonstrate to black and ethnic communities that their problems are being properly considered and understood, and, given that so many of the inner city authorities where their problems are so outstanding are under attack from the Government because of their expenditure programmes, is it not sad that the hon. Gentleman cannot be more specific about his Department's role in this matter, and should not the Secretary of State do something about it quickly?

Sir George Young: My Department has undertaken a number of initiatives in the past two years to tackle the problems facing the ethnic minorities. In March I and my hon. and learned Friend the Minister of State, Home Office, the hon. Member for Ribble Valley (Mr. Waddington) chaired a conference at Church house of all the local authorities with ethnic minorities to discuss the report about local authorities and racial disadvantage. We have taken a number of initiatives through the urban programme to make sure that ethnic minorities get a fairer share of the available resources. If the hon. Gentleman looks at the record, he will see that the Government have done more in this regard than their predecessors.

Mr. Janner: On a point of order, Mr. Speaker. In view of the unsatisfactory nature of that reply, I beg to give notice that I shall seek to raise the matter on the Adjournment at the earliest opportunity.

Local Authorities (Capital Expenditure)

Mr. Chris Smith: asked the Secretary of State for the Environment what estimates he has made of the outturn of local authority capital expenditure in 1984–85.

Mr. Gow: My right hon. Friend has not yet made any estimate of the outturn on local authority capital expenditure in 1984–85. Local authorities have been asked to complete a return giving their forecast of expenditure and receipts this year. We shall analyse those returns when a sufficient number have been received.

Mr. Smith: Have the Minister and his Department been under any pressure from the Treasury, which is widely reported to be concerned about a potential supposed overspend in local authority capital expenditure this year? Will he expand on his unsatisfactory answer earlier this afternoon and give the House a categorical assurance that he has no intention of bringing in a


moratorium on capital expenditure to meet such pressure from the Treasury? If he fails to give that assurance, will he instead give us an assurance that he will fight for the corner of his Department against such Treasury pressure and will fight for the homeless and the badly housed?

Mr. Gow: As the House knows, capital expenditure by local authorities is cash-limited. If there should be evidence of a risk of breaching those limits my right hon. Friend the Secretary of State will take such action as he judges to be appropriate. However, we need to be aware that we are only 10 weeks into this financial year.

Mr. Allan Roberts: The Minister has made a statement to the House which implies that a moratorium is under consideration or that there is likely to be one if local authorities overspend on Government targets. Will the Minister recognise that only last year his Government were criticising local authorities for so called underspending? Now that local authorities are responding and providing work for the building industry, the hon. Gentleman and his Government will penalise them and those in need of local authority house building and house improvements.

Mr. Gow: Had the hon. Gentleman listened to the answer that I gave—or if he reads the Official Report tomorrow—he would know that I made no statement of the kind that he attributed to me.

Mr. Tony Banks: What discussions has the Minister had with his right hon. Friend the Chancellor of the Exchequer regarding a moratorium on capital expenditure?

Mr. Gow: None, Sir.

Mr. Straw: Is the Minister aware that we know him well enough to know that his failure to give the categorical assurance that there will be no moratorium, and the weasel words that he has given to my hon. Friends the Members for Bootle (Mr. Roberts) and for Islington, South and

Finsbury (Mr. Smith) point clearly to the fact that the Government are contemplating a moratorium and that one is likely to be introduced?
Does the Minister not recognise that the stop-go-stop approach of this Government to capital expenditure is extremely inefficient and deeply disruptive of private manufacturing industry and the building that he claims he wishes to encourage? If my interpretation and that of my hon. Friends is wrong, would the Minister like to give the House a categorical assurance that there will be no moratorium on capital expenditure during this financial year.

Mr. Gow: The present system of control of capital expenditure by local authorities is not perfect. In this, as in other matters, we shall continue to strive for perfection.

Housing Investment Programme

Mr. John Fraser: asked the Secretary of State for the Environment what part of the published housing public expenditure total for 1985–86 constitutes the housing investment programme.

Mr. Gow: No decisions have yet been taken on the breakdown of the housing public expenditure programme for 1985–86.

Mr. Fraser: Will the Minister confirm that the forecast for total housing expenditure in 1985–86 is only one third of the expenditure level in 1979–80? Will he at least fight to preserve the present miserable levels of housing investment programmes and to prevent further slashing cuts of the kind that have taken place since the Government came to office?

Mr. Gow: The hon. Gentleman generates too much indignation. The White Paper published in February shows that total spending for housing is £2,496 million for the current financial year and £2,610 million for the coming financial year.

Press (Embargo System)

Mr. Timothy Yeo: On a point of order, Mr. Speaker. I wish to raise a matter in which I believe that the interests of the House are being grossly abused. I refer to the procedure, which I understand is quite common, whereby Government Departments and other public bodies make official reports available to members of the press under embargo before those reports are available to Members of the House.
I was telephoned at about 10.45 am today by a journalist who wished to discuss the contents of the annual report of the Charity Commissioners, in which I have a particular interest. I had to explain that I had not seen the document, whereupon he quoted large chunks of it to me over the telephone. When I inquired at the Vote Office I was told that it was impossible for any Member of Parliament to see the report until 3.30 pm.
I appreciate the need to give the press a chance to prepare reports on documents of this kind, but I regard the procedure that I have described as grossly insulting to the House and an impediment to our carrying out the job for which we were elected. Knowing of your great interest in defending the interests of Members, and especially of Back Bench Members, Mr. Speaker, I appeal to you to bring the strongest possible pressure to bear on Ministers and others in authority to end this highly unsatisfactory and undemocratic arrangement.

Mr. Dennis Skinner: rose—

Mr. Speaker: Is it the same point of order? Has the hon. Member for Bolsover (Mr. Skinner) also been approached?

Mr. Skinner: It is a different matter.

Mr. Speaker: In that case I will deal first with the point of order raised by the hon. Member for Suffolk, South (Mr. Yeo).
The House knows of my very strong views on this matter. I hold strongly to the view that the House of Commons should always be told first. I understand the embargo system, but I believe that it is a matter of honour for the press not to divulge material before the embargo time has expired. Therefore, I shall look into the matter raised by the hon. Gentleman.

Nuclear Power Stations (Operation)

Mr. Dennis Skinner: On a point of order, Mr. Speaker. This is in some way associated with the previous point of order, but not exactly. Will you ensure that the Government are made responsible for placing in the Library the McGraw-Hill publication, Nucleonic Week? Many hon. Members, especially Opposition Members, are anxious to see that document, but the Government are apparently refusing to have it placed in the Library. The document provides an up-to-date report on the way in which nuclear power stations are being operated throughout the world, including this country.

Mr. Neil Thorne: That is a bogus point of order.

Mr. Skinner: No, it is not. The matter is on today's Order Paper. A very serious problem has come to the notice of some Members of Parliament. Certain nuclear power stations in Britain are being run beyond normal risk levels to try to beat the coal miners' strike. The information in the pamphlet will help those hon. Members to prove that case, of which they have long since been informed. I call upon you, Mr. Speaker, to see to it that that publication is placed in the Library so that we can make it clear that the Government are operating British nuclear power stations at extremely dangerous levels to such an extent as to risk life and limb in this country.

Mr. Speaker: Order. I do not know whether the hon. Member was referring to an official Government document, but I imagine from what he said that he was not. I cannot be responsible for having pamphlets placed in the Library. I am sure that the hon. Member will find some means of obtaining the document.

Rate Capping

Mr. Jack Straw: I beg to ask leave to move the Adjournment of the House, under Standing Order No. 10, for the purpose of discussing a specific and important matter that should have urgent consideration, namely,
the contradictory statements made by the Prime Minister, the Secretary of State for Trade and Industry and the Secretary of State for the Environment as to whether any lists of local authorities to be designated for rate capping already exist, and whether Portsmouth city council is included in any of those lists.
On 6 June my hon. Friend the Member for Copeland (Dr. Cunningham), who is the Opposition spokesman on the environment, wrote to the Secretary of State for the Environment saying that he understood that, under the measures that the Government were using, Portsmouth was a higher "overspender" than Sheffield and that the lists in the possession of the Secretary of State, which were drawn up by his Department, included Portsmouth city council for designation.
Before there was any formal reply from the Secretary of State for the Environment, the Secretary of State for Trade and Industry, the right hon. Member for Chingford (Mr. Tebbit), spoke at a press conference in Portsmouth. That conference was reported in the Daily Telegraph on Saturday 9 June. The article stated that the right hon. Gentleman described
Labour's claim that Whitehall had plans to put Portsmouth's Conservative-controlled council on its hit list for rate-capping as 'just another piece of windy scaremongering'.
Mr. Patrick Rock, who, I understand, is the Conservative candidate for Portsmouth and a former employee of the Prime Minister, said of the allegation by my hon. Friend the Member for Copeland—
It is completely untrue.
Yesterday, I put a question to the Prime Minister about whether Portsmouth and Sheffield were included in lists for rate capping. I recited the fact that
under the Government's own chosen measures, Conservative-controlled Portsmouth has overspent to a much higher degree than Labour-controlled Sheffield".
I asked:
what sympathy has the Prime Minister for the problems of the Secretary of State for the Environment in trying to manufacture a list for rate capping which ensures that Sheffield is included but that Portsmouth is excluded?
The Prime Minister replied:
As the hon. Gentleman knows, the rate-capping measure has not yet been enacted. It is still before the other House and it would be somewhat premature to devise a list before that Bill has even become an Act."—[Official Report, 12 June 1984; Vol. 61, c. 759.]
I ask hon. Members to weigh with great care the words used yesterday in the House by the Prime Minister. The right hon. Lady did not say that no final list had been agreed by Cabinet. She said that it was premature to devise a list—in other words, that no list or lists of authorities to be rate capped existed.
My hon. Friend the Member for Copeland received a reply yesterday from the Secretary of State—

Sir John Biggs-Davison: On a point of order, Mr. Speaker.

Mr. Straw: My hon. Friend received a reply from the Secretary of State, who said that—

Sir John Biggs-Davison: On a point of order, Mr. Speaker.

Mr. Speaker: Order. I shall hear the end of the speech of the hon. Member for Blackburn (Mr. Straw) and then take the point of order.

Mr. Straw: My hon. Friend the Member for Copeland received a reply yesterday from the Secretary of State in which he described my hon. Friend's accusations as "inaccurate hearsay". Yesterday afternoon, the Prime Minister went along the same lines, by saying that no lists existed.
This morning my hon. Friend received a reply from the Secretary of State which said:
let me make the position absolutely clear. We are currently considering possible principles for selecting authorities for rate limitation. The application of different principles produces a series of lists — rather like the ones I released during the Committee Stage of the Rates Bill—and Portsmouth features on some of them.

Sir John Biggs-Davison: On a point of order, Mr. Speaker.

Mr. Speaker: Order.

Mr. Straw: I understand the hon. Gentleman's desire to ensure that the public do not hear that the Prime Minister has misled the House, but I shall not be shut up by the hon. Gentleman.

Sir John Biggs-Davison: On a point of order, Mr. Speaker.

Mr. Straw: The reality is—

Sir John Biggs-Davison: On a point of order, Mr. Speaker.

Mr. Geoffrey Dickens: On a point of order, Mr. Speaker.

Mr. Speaker: Order. I am listening to an application under Standing Order No. 10. It is difficult to hear when there is a great deal of noise. As far as I can hear, the application is in order—just.

Mr. Straw: I understand the discomfiture of Conservative Members when the Prime Minister has been discovered to be misleading the House, by the admission of her Secretary of State. There is no consistency between what the Prime Minister told the House yesterday—that no lists had been devised—and what the Secretary of State told my hon. Friend the Member for Copeland this morning—that Portsmouth features on some of the lists that have been devised.
For the second time within the week the Prime Minister has misled the House. Whether she has done so deliberately or because of the incompetent way in which she runs the Government, I cannot say. But we need to know from the Prime Minister why she sought to mislead the House; why the Secretary of State for Trade and Industry was allowed to say, presumably with the authority of the Secretary of State for the Environment, that the allegation that Portsmouth was on lists of rate-capped authorities was windy electioneering; why the Conservative candidate described that allegation as completely untrue; and why all three of those right hon. Members, including the Prime Minister, have been revealed to be telling untruths by the Secretary of State himself.
We all remember the words of the—

Mr. Speaker: Order. The hon. Gentleman must make out a case why this matter is urgent and not advance the case which he might make if the application were granted.

Mr. Straw: Coming so soon after an occasion when the Prime Minister has been found to be misleading the House, the matter is plainly important, specific and urgent. We have a Prime Minister who is increasingly a stranger to the truth—[Interruption.]—and who has treated the House and the country with contempt and we urgently seek your leave, Mr. Speaker, for a debate on the issue.

Mr. Speaker: The hon. Member for Blackburn (Mr. Straw) asks leave to move the Adjournment of the House for the purpose of discussing a specific and important matter that he believes should have urgent consideration, namely,
the contradictory statements made by the Prime Minister, the Secretary of State for Trade and Industry and the Secretary of State for the Environment as to whether any lists of local authorities to be designated for rate-capping already exist, and whether Portsmouth city council is included in any of those lists.
I have listened to what the hon. Gentleman has said, but I regret that I do not consider the matter that he raises is appropriate—

Several Hon. Members: rose—

Mr. Speaker: Order. It is not appropriate for discussion under Standing Order No. 10 and, therefore, I cannot submit his application to the House.

Sir John Biggs-Davison: On a point of order, Mr. Speaker. May I respectfully submit that the manner in which the hon. Member for Blackburn (Mr. Straw) made his application to you was an abuse of the procedures of the House? Many times in the House we have heard the occupant of the Chair inform an hon. Member seeking to raise a matter of concern by way of Standing Order No. 10, or, in former times, Standing Order No. 9, that he should not make the speech that he would make if his application was granted but that he should state the reasons why such an application under the Standing Order should be granted.
With respect, Mr. Speaker, there is little more that the hon. Member for Blackburn could say that he has not said in making his application. He cannot really be disappointed that his application was not granted, because he has deployed his case to the House, such as it is. I ask, for the future, that the House be protected from an abuse of that kind.

Several Hon. Members: rose—

Mr. Speaker: Order. I do not think that we should persist in this matter. The hon. Gentleman has simply reiterated what I have already said.

Mr. Dickens: On a point of order, Mr. Speaker. The House has been misadvised, because the Prime Minister, in answering a question yesterday—[Interruption.]

Mr. Speaker: Order. I have already ruled that I am not accepting the application under Standing Order No. 10. There is nothing more to be said about it.

Mr. Allan Roberts: On a point of order, Mr. Speaker.

Mr. Speaker: On this matter?

Mr. Roberts: About the Prime Minister, but not under Standing Order No. 10.

Mr. Speaker: Order. I am not responsible for what the Prime Minister may or may not have said.
Later—

Mr. Dickens: On a point of order, Mr. Speaker. Earlier this afternoon, when I rose on a genuine point of order at the particular time when I wished to raise that point of order, in your wisdom, from the Chair, you advised me to wait until later. I respectfully obeyed your submission and waited until later. You gave your ruling, and then deprived me of my point of order.

Mr. Speaker: Order. I am sorry for the hon. Gentleman, but I have nothing to add to what I said before.

Members of Parliament (London)

Mr. Peter Bottomley: On a point of order, Mr. Speaker. I raise the matter as a request for guidance on the timing of a Standing Order No. 10 application. It will be within the knowledge of the House that we are promised discriminatory action by the Greater London council and penalties on certain areas, which will lead to a failure of the Government and the authorities to carry out their responsibilities for education, housing, transport and various other matters.
I am referring to the potential threat that road safety crossings will not be put up in certain constituencies just because they have elected a Conservative Member of Parliament. I am referring to the threat to stop school improvements in some constituencies because they do not vote for Labour Members of Parliament. I submit to you, Mr. Speaker, that this is the sort of matter that should be raised as specific, urgent and important.
The Government have stepped in to take over housing responsibilities and it is possible that they will take over others. [HON. MEMBERS: "What is this?"] The point that I am making, Mr. Speaker, is whether this is the time to raise under the Standing Order No. 10 procedure the matter of the GLC's threat of penal, political vindictiveness or must we wait until it is carried out? I should be grateful for your guidance on the timing of a Standing Order No. 10 application.

Mr. Speaker: The Standing Order No. 10 procedure is precious Back Bench time and should not be abused. I can entertain a Standing Order No. 10 application for the Adjournment of the House only if there is ministerial responsibility over the matter that is raised. Clearly, there

is no Government responsibility for action threatened by the GLC until it happens. The hon. Gentleman must find other means of raising the matter.
Later—

Mr. Peter Bottomley: On a point of order, Mr. Speaker. You gave guidance earlier that a Standing Order No. 10 application can be allowed only if there is ministerial responsibility. When local authorities failed to carry out their statutory responsibilities in the past, we had both Government statements and debates on those issues. When local authorities threatened to take certain action, we had both Government statements and debates, raised sometimes by the Opposition, sometimes by Government Back Benchers, and sometimes by the Government themselves.
I ask for your further guidance, Mr. Speaker, on how one can ask the Government at Question Time what they will do about the threat from the Greater London Council and/or certain of its members, and on what the distinction is between such an issue being raised at Question Time, or as an urgent, specific and important matter, as I tried to do following the intimation yesterday that certain members of the GLC will do the best that they can to fail to carry out their responsibility in an even-handed manner throughout the GLC area.

Mr. Speaker: The hon. Gentleman was previously in touch with me about raising this matter of the threatened actions of the GLC. I told him then, and I tell him again now in the House, that there is no Government responsibility for actions threatened by the GLC. There are many other tactical ways of dealing with the matter. It could have been raised at Question Time this afternoon, or in an Adjournment debate.

Unparliamentary Expressions

Mr. Allan Roberts: rose—

Mr. Speaker: Order. I am not prepared to say any more.

Mr. Roberts: On a point of order, Mr. Speaker. I seek your guidance in relation to the rights of Back Benchers. Back Benchers and other hon. Members cannot accuse another Member of Parliament of being a liar or of misleading the House. As I understand it, the reason for that regulation is that Mr. Speaker protects the House from being misled and told lies. I should like to know, Mr. Speaker, perhaps tomorrow, what Mr. Speaker can do when such circumstances arise and it appears that the House has been told lies or is being misled. What responsibility do you have for calling to order a right hon. or hon. Member, a Minister, or the Prime Minister when he or she is apparently misleading the House? The matter must surely rest with you, because we are not allowed to accuse right hon. or hon. Members of being liars.

Mr. Dennis Skinner: rose—

Mr. Speaker: Order. The hon. Member for Bootle (Mr. Roberts) knows that I cannot possibly answer that. I cannot read the minds of right hon. and hon. Members when they are making speeches from either side of the house. I have no knowledge whether what they are saying is right or wrong. That is not a matter for me at all, and I cannot deal with it.

Mr. Skinner: But on this question of what Members of Parliament are able to say about other right hon. and hon. Members, we are trying to develop a vocabulary to which we can add names and phrases or delete those that are not allowed. Will you give us advice, Mr. Speaker, on whether, in view of what my hon. Friend the Member for Blackburn (Mr. Straw) and others have just said about what the Prime Minister says from the Dispatch Box, an hon. Member would be in order if he said, for instance, that she "would not know the truth if it was sprayed on her eyeballs."

Mr. Speaker: Order. The reason—the whole House knows this—why these phrases should not be allowed in the Chamber is a question of good order. I quote the wise words of Mr. Speaker Sir Thomas More:
Without freedom of speech there can be no wise debate. Without order there can be no debate at all.

Greater Access to the Countryside

Mr. Tony Baldry: I beg to move,
That leave be given to bring in a Bill to provide for increased access to the countryside.
The purpose of the Bill is to ensure greater access to the countryside. Growth in the population inevitably puts pressure on farming land and the countryside, not only to make more agricultural land available for housing, but, on the one hand, fanners, who need to farm the land to produce food and crops for the benefit of the whole community, and, on the other, the ever-increasing number of people who wish to enjoy the countryside for walking, recreation and leisure.
Those competing claims tend to come most sharply into conflict over footpaths across farmland and access to the countryside. I am concerned that, at present, there is too little co-operation between walkers and farmers to ensure maximum access to the countryside, with minimum inconvenience to farmers. The present state of the law does not help to generate the, co-operation to create new, well-marked footpaths for the benefit of all.
It is not surprising that walkers become irritable and frustrated if farmers fence off footpaths, or that farmers become angry if walkers trample down crops. One of the reasons why farmers are not always enthusiastic about footpaths on their land is that, all too often, footpaths tend to go right across fields rather than round them. The reasons for that are historic and date back to a time when footpaths were used mainly as a means of communication by a few people, rather than for recreation and leisure by many. The numbers using footpaths were small and they tended to take the shortest distance between two fixed points—a straight line.
For example, the footpath between the villages of Shutford and Tadmarton near Banbury reputedly came into being because once a week the local vicar taking religious services rode that way between the churches of the two villages. The routes of footpaths have become fixed, but often such routes originated because of landscape features which no longer exist. For example, the same Shutford to Tadmarton footpath is shown on a map of early this century as following a hedge system which has long since disappeared.
The co-operation of farmers in creating new footpaths is likely to be greater if they were able sensibly to divert footpaths around fields. There are at present powers available to county councils, as the highway authority, to divert footpaths, but the procedures can be cumbersome and costly, as only one objection invariably means a public inquiry. It would appear that certain groups object to every application, however reasonable, to divert any footpath. Thus, farmers who have inconveniently routed footpaths crossing their land tend not to take the initiative to have them diverted, being apprehensive of getting themselves entangled in costs and administrative red tape.
This whole procedure could be simplified. People should, of course, be allowed to register objections to a proposed diversion, and the county highway authority must have regard to those objections before deciding whether to allow an application to change the route of a footpath, but this could be done without having to resort to a public inquiry every time an application is opposed. The Bill thus proposes that county councils be given


powers to divert footpaths wherever it seems to them that, in all the circumstances, and having regard to any objections, it is reasonable so to do.
In return for a simplification of the procedures for sensibly diverting footpaths, the Bill intends that farmers should have a statutory duty to take all reasonable steps to mark the route of any footpath crossing their land. At present, there is a statutory duty on the highway authority to mark footpaths when they leave the metal road but no duty on the farmer to mark the route of a footpath once it enters his land.
Further, the whole system of footpaths has developed a sort of rigor mortis, because few new footpaths are being created. This is, I suspect, partially because farmers are frustrated at the present complex of footpaths crisscrossing fields rather than going round them, and what they see as unreasonable opposition to any attempt at rationalisation.
It is also, I suspect, because there is a confusion of statutory duties under various Acts—for example, the National Parks and Access to the Countryside Act, various highways Acts and the Wildlife and Countryside Act—which place different statutory duties on landowners, county, district and parish councils.
For example, parish councils have powers to create new footpaths but rarely do so because they are unaware of their powers. A confusion of statutory duties contained in a variety of Acts is preventing new footpaths from being created, and I submit that all legislation relating to footpaths and bridleways should be consolidated into one Act of Parliament. The Bill seeks to achieve that so that everyone will know his responsibilities and opportunities to create new footpaths.
There are a number of places where new footpaths could be created—for example, farm tracks and disused railway lines — without causing inconvenience to farmers. My Bill is intended to ensure the maximum access to the countryside for as many people as possible, with a minimum of inconvenience to farmers and agriculture. We shall then see coming into being new footpaths suitable for family walks without disrupting farmers' crops or stock. I seek the leave of the House to introduce the Bill.

Question put and agreed to.

Bill ordered to be brought in by Mr. Tony Baldry and Mr. Phillip Oppenheim.

GREATER ACCESS TO THE COUNTRYSIDE

Mr. Tony Baldry accordingly presented a Bill to provide for increased access to the countryside; And the same was read the First time; and ordered to be read a Second time upon Friday 6 July and to be printed. [Bill 193.]

Orders of the Day — Matrimonial and Family Proceedings Bill [Lords]

As amended (in the Standing Committee) considered.

New Clause

REMARRIAGE (RELIGIOUS BARRIERS)

'After section 9 of the Matrimonial Causes Act 1973 there shall be inserted the following section—
9A. — (1) Where a petition for divorce or nullity of marriage has been presented to the Court, either party to the marriage may apply to the Court at any time before decree absolute opposing the grant of the decree absolute on the ground that there exists a barrier to the religious remarriage of the applicant which is within the power of the other party to remove.
(2) The Court shall not entertain an application under subsection (1) hereof unless the applicant satisfies the Court of the existence of such a barrier by means of a written declaration by the religious authority which authorised or sanctioned the marriage being dissolved by the Court, or which authorised or sanctioned a religious ceremony of marriage between the same parties or on proof that such authority no longer exists, by a religious authority recognised by both parties to be competent.
(3) If the Court is satisfied as to the existence of such a barrier then subject to the provisions of subsection (4) hereof the Court shall refuse to permit the decree to be made absolute until it is satisfied by means of a written declaration by the authority referred to in subsection (2) hereof that the said barrier has been removed or that the parties have taken all such steps within their power to remove the said barrier or until the said application is withdrawn by the applicant.
(4) Notwithstanding the provisions of subsection (3) hereof the Court may order that the decree may be made absolute if there are exceptional circumstances making it desirable for the decree to be made absolute without delay.".'.—[Mr. Abse.]

Brought up, and read the First time.

4 pm

Mr. Leo Abse: I beg to move, That the clause be read a Second time.
I am grateful to you, Mr. Speaker, for having selected the new clause for debate. I am sure that that gratitude will be echoed by many within the Jewish and Moslem communities, as it enables to be canvassed within the House a matter which, although I believe it is a mischief, has not come before the House before.
The new clause is an attempt to deal with a mischief which, unhappily, arises too frequently when orthodox Jewish or Moslem couples seek to end their marriages. According to orthodox Jewish and Islamic law, in order to remarry, the divorced partners must be in possession of a religious divorce — a get as it is called within the orthodox Jewish religion, a talak for the committed Moslem. The obtaining of such religious decrees requires an initiative from the husband and some sign of at least procedural co-operation from a wife. At first sight, such matters are clearly beyond the province of our civil law.
Unfortunately, one partner—usually the husband—can brutally manipulate the passionate wish of the other party to be free after a civil divorce to remarry according to the religious law, without which religious remarriage the religious Jewess or Moslem may regard herself as an


adulterer. Therefore the protection that our civil law provides for maintenance and the custody of children can be subverted by a ruthless partner.
The partner—usually the husband—blackmails the wife. The price for taking the necessary initiative is an agreed settlement or arrangement relating to children. It might be a settlement which, if the issues were adjudicated upon openly in court, would, according to the principles which the House has laid down in our civil law, be far different from that to which the hapless wife has been compelled to submit.
This sordid exploitation of another's religious commitment cannot commend itself to those of religious faiths other than the Jewish or Moslem, nor to those, like myself, whose intellectual convictions do not permit them to be so attached to ancient faiths as are these victimised partners.
It must be repugnant to us all that one spouse can use consent to a get as a bargaining card to obtain an unconscionable and inequitable financial settlement. In the Moslem communities considerable anxiety is felt about what are known as "limping" marriages—a marriage which is considered to be valid and subsisting by Islamic law, but dissolved and at an end by our law.
The failure of the husband to consent to a talak often leaves him at no personal disadvantage as, according to Islamic law, a man is allowed more than one wife. The man can remarry according to religious and civil law, but the wife cannot. Such circumstances have led inevitably to the creation of "limping" marriages, with all the attendant social and financial problems.
The aim of the new clause is to give the courts the power to withhold the decree absolute when they are satisfied that there is a barrier to religious remarriage which it is open to a partner to remove. Endowing the courts with such a power would, I have little doubt, have such a deterrent effect that the present miserable exploitation of another's commitment to religious rules would cease, because it would remove from any partner the coercive power which exists and is too often abused.
I am making this appeal within our plural society to ensure that our civil law is not circumvented. It would make nonsense of all our efforts during the proceedings on the Bill to obtain a just financial settlement for wives if we ignored the needs of those women who must be protected. The House alone can give the necessary protection, unless such people are to abandon completely their religious commitments.
I am keenly aware that there will inevitably be blemishes and defects in the drafting of such a clause. These are novel circumstances, which are becoming more acute within our plural society. It is open to the Solicitor-General to point out the defects and blemises which clearly exist in the new clause.
I hope that, with his forensic skills, the Solicitor-General will not merely sweep aside the new clause because of its technical defects, but will give a clear sign to those interested within the Jewish and Moslem communities that the Government have become aware of the problem and realise that it needs remedying, because it cannot be allowed to continue.
I ask the Solicitor-General to tell those communities that are watching the debate with interest that the Government are sensitive to the problem and that if, as I hope, Moslem and Jewish communities make representations to the Lord Chancellor, it will be possible for

guidance and help to be given by having the matter reviewed by the Law Commission, and dealt with by a private Member's Bill or in another Bill. I hope that the communities can be made aware that the Government are not blind to the problems, nor are they unsympathetic towards any remedy which can properly resolve the difficulty. It is with that plea that I move the new clause and hope that the Solicitor-General will give it a warm response, which will be fully appreciated by the Jewish and Moslem communities.

Mr. Peter Thurnham: I thank you, Mr. Speaker, for calling me to speak on this new clause which stands in my name as well as that of the hon. Member for Torfaen (Mr. Abse).
I did not serve on the Committee and I am not a lawyer, so I hope that I can speak adequately for that substantial minority of people in my constituency and elsewhere who suffer under the law as it stands. Those constituents are Moslem wives. At present they suffer from two injustices. The first relates to those wives who have obtained a divorce abroad which, although satisfying their religious requirements, does not provide for a financial settlement.
I am pleased that my right hon. and noble Friend the Lord Chancellor has confirmed that part III of the Bill is designed to remedy such an injustice. By giving English courts powers to recognise a Moslem divorce, or talak, the Bill enables financial relief to be awarded to a former spouse who might otherwise be destitute. As my right hon. and noble Friend said in a letter to me, wives are unable to
enforce any foreign financial order because no such order exists. Such a woman may thus face destitution, and her only source of support may be supplementary benefit. The fact that the former husband lives in this country, possibly in possession of substantial assets, makes no difference to the legal position.
I welcome that. I welcome the fact that where funds are available in a family the burden on the welfare state should be lightened, and the wife freed of such a stigma under the provisions of part III.
However, owing to an anomaly in the law, there is a second injustice that is not remedied by the Bill, which is why we are introducing the new clause. Although English courts will be given powers in part III to recognise a religious divorce overseas, they have no power to recognise a religious divorce in this country. That creates a predicament for Moslem women seeking a civil divorce in Great Britain. Under Moslem law a man may have many wives, but a woman only one husband. Thus, religious divorce is essential for a Moslem woman who wishes to remarry according to her faith, but a Moslem man can be content with civil divorce alone, as he does not have: religious inhibitions about remarrying as often as he wishes.
Thousands of brides face that predicament. They are vulnerable to blackmail by their husbands, who will agree to a religious divorce only for a consideration. Such blackmail demands are scandalous and flout the intentions of the court when making provision for a wife. They should be prevented by passing the new clause, which demands the removal of religious barriers to remarriage as a condition of civil divorce.
Cases have been brought to my attention in Bolton, of which my constituency is a part. In one case, the parties had gained British nationality but had been separated for five years with a decree absolute. The ex-husband would


not, however, grant a religious divorce. He demanded £5,000 and the return of the wedding jewellery as an inducement.
In the second case, the husband and wife were married in India. After an unhappy relationship in Great Britain the husband sent his wife's passport to the Home Office in an attempt to get her removed, as she did not have British nationality. He eventually agreed to a religious divorce, but only if he did not have to pay maintenance and if she returned the wedding jewellery to him.
In the third case, both sides had British nationality, and the matter was settled only after violent persuasion by the wife's family. Obviously, a solution that involves a breach of the peace is unsatisfactory and not conducive to good race relations.
In the case of Mrs. Patel, her relatives fulfilled the husband's demands by paying him £4,000 and returning the marriage jewellery to obtain a religious divorce. In the fifth case, the wife was not a British citizen and her relatives paid money to obtain a religious divorce after the husband threatened to arrange a deportation.
Therefore, there is considerable evidence to show that many women, some of whom are British citizens, suffer injustice under the present law through no fault of their own. What does Parliament intend to do to remedy that position? Surely the law should help to reinforce religious beliefs in the sanctity of marriage, whatever the religion, rather than ignore barriers to marriage, which are real and practical for this minority of Moslem women.
The rights of Moslem women to remarry according to their religious faith should be facilitated by the courts. That is the purpose of the new clause. It does not introduce a new barrier to divorce, but seeks to remove an existing one. Besides, subsection (4) gives the court absolute discretion about the matter. Just as part III recognises the rights of Moslem women who have a religious divorce abroad, part I should recognise the need to remove religious barriers to a civil divorce in this country.
The Lord Chancellor said that the courts would take conduct into account regarding financial provision, where it would be inequitable to disregard it. Likewise, Sir Jocelyn Simon argued in Qureshi v Qureshi in 1971 that not to recognise a talak would put the wife in a financially disadvantageous position with no right to reclaim her dowry. In Brett v Brett in 1969 the judge ordered that a lump sum payable by the husband should be reduced if a religious divorce were granted. Judges should not be put in the position of having to use a back door when policy and equity dictate that this should be properly set out at the beginning of the Act.
I urge right hon. and hon. Members not to turn their backs on this unfortunate minority and to support the new clause in the interests of humanity. I ask the Government to give a commitment to act.

The Solicitor-General (Sir Patrick Mayhew): The new clause, to be inserted into the Matrimonial Causes Act 1973, seeks to enable a party to apply to the court, at any time before decree absolute on a petition for divorce or annulment, for the decree absolute to be delayed until the other party has removed any barrier to the religious remarriage of the applicant, which he has the power to remove, for example, by the pronouncement of a get.
I am grateful to the hon. Member for Torfaen (Mr. Abse) and to my hon. Friend the Member for Bolton, North-East (Mr. Thurnham) for giving me the opportunity to express the views of my right hon. and noble Friend the Lord Chancellor about the proposal, which was first raised at a late stage in Committee by the hon. Member for Torfaen.
The hon. Member for Torfaen hoped that I would not, with my usual forensic grace, sweep the new clause aside because it has drafting defects. It does not call for much forensic grace to do that. Moreover, I hope that I do not often do that to amendments tabled by hon. Members. The hon. Gentleman knows that there are fairly substantial difficulties in drafting the new clause, which make it impossible to insert it into the Bill. I do not propose to waste time going over those difficulties, and I hope that the House will accept that substantial difficulties exist. I know that the hon. Gentleman is aware of some of them.
I took special account of my hon. Friend's constituency cases. There is little better evidence of a problem than that which we accumulate in our constituency surgeries. I understand that a powerful case can be made for the intended change in the law. I see the force of the case that, if there is a bar to religious remarriage, which can be lifted only by the partner from whom one has been divorced, it provides, in unscrupulous hands, a powerful opportunity for blackmail. Both speeches made that point clear.
My hon. Friend the Member for Bury, South (Mr. Sumberg) also made that point clear to me. He passed on similar representations to me on behalf of the Jewish community. As my hon. Friend the Member for Bolton, North-East said, case law has developed which has permitted judges to express effectively their disapproval of blackmail. That has provided protection for a wife from such abuse. I note what was said about the need to change the statute law. On the merits of the proposal, I doubt whether it would be right to prevent a marriage from being dissolved by a bar that was based on one narrow aspect of conduct. That is not necessarily the only way in which the problem can be addressed.
The hon. Member for Torfaen knows that the Lord Chancellor discussed the proposal with the hon. and learned Member for Leicester, West (Mr. Janner) recently. The Lord Chancellor has authorised me to tell the House that although the Government firmly believe that the new clause is not suitable for insertion at this stage—for reasons which I outlined briefly — if at a later date representations were made to him so that he could hold proper consultations with representatives of religious bodies, which he has been unable to do, or if the new clause formed the subject of a private Member's Bill, he would not be unsympathetic to it. Although he could give no commitment, he would undertake to consult widely upon the matter and to give it the most thorough consideration.
In the circumstances, the House would not expect me to go further, and I am not authorised to go further. But I believe that my remarks give the hon. Member for Torfaen that for which he asked—a recognition by the Government of a problem that has arisen, and an undertaking to consider the matter seriously if it is raised at a later stage. However, reluctantly, I cannot accept the new clause.

Mr. Abse: In view of the helpful comments of the Solicitor-General, I beg to ask leave to withdraw the clause.

Motion and clause, by leave, withdrawn.

New Clause 2

INVOLVEMENT OF SOLICITORS

Solicitors shall be entitled to appear in and conduct all family proceedings.".—[Mr. Weetch.]

Brought up, and read the First time.

Mr. Ken Weetch: I beg to move, That the clause be read a Second time.
Hon. Members will have noted that I am the only non-lawyer on the list of Members who tabled the new clause. Therefore, I am arguing the case with no professional interest to defend and, indeed, no interest to declare at all. No one could level the charge at me of being willing to make even a partial intervention on behalf of lawyers of any sort.

Mr. Keith Best (Ynys Môn): Does the hon. Gentleman draw an inference from the fact that all the other supporters of the new clause are members of the Law Society and that none of them is a member of the Bar?

Mr. Weetch: That intervention comes a little early in my speech. I can say only that those who put their names to the new clause know their business best.

Mr. Tony Favell: Does the hon. Gentleman know that my hon. Friend the Member for Bridlington (Mr. Townend) is a chartered accountant?

Mr. Weetch: If I have accused anyone who is not a lawyer of being one, I apologise unreservedly. When I rose to speak I believed that I was the only non-lawyer, but I am grateful for that information.
The general case for a divided legal profession — advocates and solicitors—was thoroughly investigated some time ago by the Royal Commission on Legal Services, and the last thing I wish to do is to go over that ground generally. There are many arguments for a unified profession as against a divided profession, but I shall not discuss those arguments.

Mr. Alex Carlile: Is the hon. Gentleman aware of the conclusion of the Royal Commission on Legal Services, which was strongly in favour of retaining the divided profession on the grounds that it provided a higher standard of legal service?

Mr. Weetch: I read the Royal Commission's report carefully, and I am well aware of the conclusion. However, the new clause relates to only one area of legal work. I am not arguing the general case, but addressing my remarks to family and divorce proceedings. The focus of the new clause is narrow. I hope that it answers the hon. Gentleman's intervention to say that I am not concerned with the wide angle taken by the Royal Commission, although I understand that there may be some common arguments.
The new clause would allow solicitors to appear in and conduct family proceeding cases without restriction. As a non-lawyer and as a man in the street, speaking for the consumer interest, I believe that that proposition is right. The current position, as I understand it—I stand to be corrected on technical matters — is that a solicitor is prevented by law from conducting proceedings in open

court in the High Court, but has full rights of audience in the county court. He cannot appear in a defended divorce suit or in an appeal from magistrates to the divisional court of the Family Division of the High Court.
Part V of the Bill will give solicitors many more rights of audience and representation. Since it is likely—I put it no higher than that—that defended divorce suits will be heard more and more in county courts as a result of the legislation, solicitors will be entitled to audience in defended cases in those courts. Therefore, I concede that solicitors will be given more work as a result of the readjustment of legal and court responsibilities.
However, a few no-go areas remain for solicitors, and I shall leave it to another hon. Member to explain what they are. It is inconsistent that, having taken this step to widen the area of advocacy for solicitors, the Solicitor-General was not able to take the matter to its logical conclusion. However, I shall argue the case as a layman and examine it from a common sense point of view.

Sir Raymond Gower: Can the hon. Gentleman give me some guidance—I assure him that I am not hostile to his case — on the term "all family proceedings"? Does he mean that to refer to appeals to the Court of Appeal or to the House of Lords? It would appear so from the wording, and I suggest — as a solicitor, I am prepared to go along with him to a great extent—that the wording is too wide. Does he not agree that there should be some restriction?

Mr. Weetch: I did not envisage sending the bulk of solicitors to appeal before the House of Lords. That was not in my mind. What I had most in mind were proceedings in the High Court.

Mr. Kenneth Hind: On that point, would you accept that: on the wording of your amendment—

Mr. Speaker: Order.

Mr. Hind: I apologise, Mr. Speaker. Will the hon. Gentleman accept that if we were to vote for the new clause it would imply that we would send solicitors to the Court of Appeal and the House of Lords to deal with matrimonial finance and associated matters?

Mr. Weetch: The answer is yes. If the hon. Gentleman thinks that the wording of the new clause is too wide, he must exercise his judgment.
Perhaps I may come to the common sense of the case. I have been interrupted so many times even before my speech has come up through the gears, but I shall hasten to make progress.
First, in divorce and matrimonial matters many solicitors do a good job in sorting out many of the complex matters involved. They often make good advocates. I have come across many solicitors. who make far better advocates than their counterparts who specialise in advocacy, because they often have a better grip of the material, having prepared it. There are good solicitors in my constituency, and I take the opportunity to pay tribute to them.
Secondly, the main point of the case is that solicitors are above all family practitioners, and these are family matters. Often they have to deal with other areas of family business and can bring a great deal of direct knowledge and practical experience of the human issues involved in


the whole framework of matrimonial proceedings. Solicitors are often advisers on a range of general matters. Therefore, the proposal in the new clause is appropriate and relevant.
Thirdly, there is the argument of continuity. If a solicitor has conducted the advocacy before the magistrates court, it is to the advantage of all concerned that he continues the advocacy. He knows the case. He has cleared his mind about the principle and the detail, so I can see no advantage, in family matters, to change horses in midstream and hand the case over, especially if an advocate has to be instructed at the last minute and important details have to be read up literally while the advocate is on the bus on the way to the case, as frequently happens — although advocates do not often travel by bus.
Fourthly, the new clause is in line with the Government's general philosophy of making a bonfire of restrictive practices. This restrictive practice would be highly anomalous if it were allowed to continue. The best parallel example to quote is the gradual elimination of dual capacity on the stock exchange, where the functions of jobbers and brokers are increasingly being combined. Dual capacity should ultimately go in the law, and we could make a start in family matters.
Finally, there is the question of cost. It would be cheaper for the consumer, in this case the client. On cost grounds there is a strong argument for retaining the matter in single hands, if possible. We have had considerable debate from time to time about the cost of divorce proceedings and how necessary it is for the cost to come down. This is one way to do it. The public would be very glad of it.
I shall be interested in the reply of the Solicitor-General, and especially to hear how many ingenious props he can manufacture to shore up a structure that has been decaying for years.

Sir Raymond Gower: I regret very much that the hon. Member for Ipswich (Mr. Weetch) and those who support him have worded the new clause in this way. I think they would have commanded greater support if they had limited it to ensuring that there would be a wider right of audience only up to the level of the High Court and the Crown court in the trial of a matrimonial cause. Although the hon. Gentleman did not appear to agree with me at the time, surely on reflection he must agree that this general wording would embrace the possibility of an appeal to the Court of Appeal or the House of Lords. He said that he would not mind that.

Mr. Weetch: Can the hon. Gentleman tell me what would be so terrible about that?

Sir Raymond Gower: I accept the validity of the hon. Gentleman's arguments when he says that it would be advantageous in many cases for the solicitor who had dealt with the matter at the lowest level to continue to deal with it at a higher level. But he must surely agree that when a case goes as far as the Court of Appeal, it is usually on a fairly important point of law or because it is a difficult case. In most cases an instructing solicitor or any solicitor dealing with it would want the benefit of specialised advice from an expert on the subject. He would not even

be content with the services of a barrister with a general practice. Even more would that argument apply if it was decided to take the case to the House of Lords.

Mr. Abse: The hon. Gentleman is speaking as though the new clause would make it mandatory for solicitors to take these cases to the House of Lords. No solicitor who knew that he had a case of such complexity that it required a silk to deal with it would wish to go on himself in the interests of his client. I suggest that all my hon. Friend is trying to do is look after the client and not the Bar or solicitors.

Sir Raymond Gower: It is entirely unrealistic to envisage a case being so important as to go to the Court of Appeal and to require the right of a solicitor to have audience there. By making the wording so wide in this sense the hon. Gentleman is lessening the support that he is likely to get in the House. Many Members who might have supported him as far as the High Court will be deterred because his wording goes much further.

Mr. Tony Blair: Will the hon. Gentleman agree that all the new clause seeks to do is to give a choice, so that it is up to the solicitor and his client whether they want a barrister or a solicitor to represent them? For example, in the employment appeal tribunals, where a solicitor can appear, many people decide of their own choice to brief barristers, but it is not mandatory.

Sir Raymond Gower: That may be the case. I may be wrong, but in my view by having the wording so wide hon. Gentlemen are lessening the chance of getting the amendment accepted. I am sure I shall be proved right in the event.

Mr. Alex Carlile: I make it clear at the outset that I speak for myself, not for my party, and also that I speak as a practising member of the Bar and with a frank interest and belief in the value of an independent Bar.
I share the reservations expressed by the hon. Member for the Vale of Glamorgan (Sir R. Gower) as to the breadth of the new clause. That apart, though, there are substantial objections to the principle behind it.
Passing reference was made by the hon. Member for Ipswich (Mr. Weetch) to the Benson commission—the Royal Commission on Legal Services. We must not forget the detail into which the commission went and the careful examination that it undertook. The short but valuable paragraph 18.40 on pages 212 and 213 of the report states:
The present arrangements ensure a system of objective selection which the proposed arrangements would lack. At present, to judge from the data obtained by our Users' Survey, a client goes to a solicitor, usually by way of personal recommendation, without any informed knowledge of his capacity for handling the class of work required. the number of firms available in a given area and likely to be known to a potential client is limited and the area of choice is not wide. However, when it is necessary to instruct a barrister, it is the responsibility of the solicitor to advise his client which of the barristers practising in the relevant field is fitted to take the case in question. The qualities required are more likely to be found by this method than by any other. Accordingly, we consider that, under the present arrangemens, the range of informed choice is wider and selection of a suitable advocate more likely.
We are concerned with giving the lay client an informed choice of the best available advocate for his or her case. The Benson commission's conclusion was not only clear, but it was based upon a users' survey and consultation not only with the two parts of the profession, but with people with experience of litigation.
There is no doubt that many solicitors are extremely competent and would be able to conduct matrimonial causes in the higher courts. No one responsible, not even the most partisan member of the Bar or arguer for the rights of the Bar, would gainsay that. We are not questioning whether there are solicitors who are fit to conduct such cases because undoubtedly they exist. We are, however, talking about what happens when a client goes to the wrong sort of solicitor or a solicitor who is not competent to carry out work for him and is given an unsatisfactory service in court.

Mr. Toby Jessel: A client could find the wrong barrister.

Mr. Carlile: That matter was specifically considered by Benson, and if the hon. Member for Twickenham (Mr. Jessel) had been listening he would have heard me describe the way in which Benson dealt with that.
Many lay clients go to a solicitor in a general practice having walked into his office from the street, perhaps without knowing anything about him; or to a solicitor who is expert in some spheres, but not in others. Some solicitors will undertake almost any form of advocacy and any case in which they have the right to appear without necessarily being competent to handle it. That might be an unpalatable truth, but truth it is. All who practise have seen that happen from time to time. As Benson said, the lay client, having gone to a solicitor who is forced to instruct counsel to deal with the case because of the restrictive practice rule, is far more likely to have his case dealt with by someone competent.

Mr. Gerald Bermingham: Does the hon. and learned Member for Montgomery (Mr. Carlile) agree that his remarks about solicitors as a whole were a little intemperate? All solicitors are covered by compulsory insurance. If a solicitor makes a mess of a case, a remedy is available to the client. He can sue.

Mr. Carlile: With respect to the hon. Member for St. Helens, South (Mr. Bermingham), who is an experienced solicitor and no doubt extremely competent in all areas, it is small comfort to a divorced wife who has been deprived of her child or settlement by an incompetent solicitor to be told that she can claim against an insurance company. The type of person who will be devastated by such an experience is most unlikely to want to stir the ashes of a desperately unhappy experience and go running either to the Law Society or—woe of woes—if she wants to claim against her solicitor, to another solicitor.

Mr. David Sumberg: Does the hon. and learned Gentleman accept that there is no possibility of a negligence action arising out of court proceedings, so that example could not apply in any event?

Mr. Carlile: I know that the hon. Member for Bury, South (Mr. Sumberg) is right as regards the Bar, and I suspect that he is right in relation to solicitors. Many of us are familiar with the case of Rondel v. Worsley, which deals in general terms with such problems.
If a lay client goes to a solicitor and the solicitor responsibly instructs a suitable member of the Bar to conduct the case, whether he is a specialist or a general common lawyer experienced in matrimonial law, there is a reasonable guarantee that a good standard of service will be given in court.
Another issue in connection with the new clause is of fundamental importance. It is inappropriate that the back door of a matrimonial law Bill should be used to hasten a far-reaching change in the provision of legal services. The hon. Member for Ipswich is 100 per cent. wrong when he suggests that his new clause involves a narrow sphere and that one cannot compare matrimonial advocacy with criminal advocacy. He argued that somehow the advocacy part of matrimonial cases is of less importance or requires different standards. Those who have practised in matrimonial cases in the higher courts know that the type of advocacy required may be strikingly similar in some matrimonial cases to that required in criminal or personal injuries cases, or in any other type of case where specialised advocacy and advocacy experience is required. Such changes in the provision of legal services should riot be made in this type of legislation.
I declared my interest earlier. I think that the independence of the Bar is not only a cherished part of our legal structure, but an important part, in matrimonial cases as in any other. I recall an instance within my hearing when one advocate said to another outside the court room, "Just remember that we are not divorcing one another. We have clients."
In matrimonial cases, above all others, the solicitor is likely to have a great deal of contact in his office with his client. He is likely to be under enormous pressure from his client. Emotional and financial considerations are involved, as well as considerations of high principle. A profession which is divided and retains the objectivity of the Bar is needed in the more serious matrimonial cases more than in any other sphere.

Mr. Hind: The hon. Member for Ipswich (Mr. Weetch) has put forward a cogent argument for the merger of the two sides of the legal profession, but we are not here to discuss that matter today. The hon. Member is striking at the fundamental basis of the division of responsibility within the English Bar and the Law Society. For that reason, we should look at it carefully and examine the much wider arguments that should be taking place about the clause. I suggest that this is nothing more than nibbling away at the rights of audience of the Bar in England.

Sir Raymond Gower: And Wales.

Mr. Hind: And Wales. I apologise to my hon. Friend and thank him for that comment.
The reasons for rejecting the arguments are that the English legal system has traditionally been divided into two parts. When a barrister is brought into a case, he comes in as a skilled specialist advocate. For years, he has trained in certain fields. The Bar is no longer divided as in the past, when every barrister did every type of case. It is divided into specialists in criminal, matrimonial, patents and so on. The solicitor goes to such a specialist, and asks for his skill. The skilled advocate is trained to provide expertise in a specific sphere. Most of all, as my hon. Friend the Member for Vale of Glamorgan (Sir R. Gower) said, he brings objectivity to the case of his client.
A solicitor who has seen a divorcee off the street from the beginning of his or her case, and has gone through the case bit by bit, is not likely to be very objective. That solicitor has seen the client over and over again. When it comes to court proceedings, expert objective advice is


required. We should be considering all the rights of audience together, and not in relation to matrimonial matters only.
I am sure many of my hon. Friends will agree with the hon. Member for Ipswich (Mr. Weetch) that the arguments that can be applied to the rights of audience in the Family Division can be applied equally to the rights of audience in any other part of the legal profession. The solicitor will be doing the criminal case in the Crown court, he will be doing the patents in the High Court, and he will continue to deal with all kinds of cases throughout the profession.
The Bar has been encouraged to recruit people into the profession for a number of years. The stage has been reached where the number of banisters in the profession is more than equal to the amount of work available. The Bar is now considering reducing the intake into the profession, because the work is not available. The suggestion has been made that the position of the solicitor with rights of audience in the High Court, the Court of Appeal and the House of Lords who can get clients off the street is not altered, and that he acquires an area of work. The barrister, however, cannot go to the street and advertise his skill. He cannot take members of the general public into his office and take instructions from them, from banks, from building societies, or from insurance companies.
I am sure that the hon. Member for Ipswich will join me in my next question. If hon. Members are prepared to vote in favour of the clause, are they prepared to accept the consequences of the vote, and give to members of the Bar a merged profession? Many members of the Bar think as I do, and would dearly like to have access to members of the general public, and to take instructions from them. One has to have one or the other. One cannot nibble at the two, and try to make something out of that.
It has been suggested that we should consider sending solicitors to the Court of Appeal and to the House of Lords. Is that the intention of the clause? I think that the proposers of the clause have not fully considered the consequences. It would drive a coach and horses through the recommendations of the Benson commission, which advised how the legal profession should be run.
Many solicitors, whom I know personally and who instruct me, are not sure that they want the right of audience. Cynically, I doubt whether they can make as much money appearing in the High Court as they can sitting in their offices taking instructions from the clients, wrapping their tape round the instructions and sending them out to counsel. I am sure that many of them will think twice about this.
The hon. Member for Ipswich said that there will be a considerable increase in the number of cases conducted by solicitors. From experience, I say to the hon. Gentleman that that is nonsense. The number of contested divorces is few. Under the new court procedure for undefended divorces, the majority of divorce cases, and the ancillary proceedings of custody and property are dealt with in the county court in any event. This provision will be used without proper debate and appropriate legislation to open the door for rights of audience for solicitors in every other court in the country. This is not the Bill in which such provision should be included. It is a different matter from what the House is now considering. I urge hon. Members to reject the clause as inappropriate.

Mr. Abse: I regret that so much heat should be engendered by a small new clause that I tabled and that my hon. Friend the Member for Ipswich (Mr. Weetch) was prepared to move. It is a demonstration of the disproportionate alarm that has evidently been felt by the Bar upon a matter which, as my hon. Friend stressed, is directed to a narrow area. From experience, I believe that there is a strong case for the solicitor to have the right to take through the proceedings, wherever they may go, if he has the competence and ability to do so.
When a client sees a solicitor upon a matrimonial matter, he consults a man or woman who is to deal with the most intimate and difficult of personal problems that a human being may have. A solicitor has to listen, often for long periods—perhaps for much longer than he need—to get to know the facts on which to decide whether he can advise upon a petition. It is a denigration of the role of a solicitor to suggest that he merely breaks marriages. His capacity as a solicitor is tested when he acts as a listening post, which is often what is needed by people requiring a catharsis when they experience the emotional distress and woe that a divorce involves. When a party pours out his or her woes to a solicitor, a relationship is established that is quite different from that established when a person wishes to instruct a solicitor to draw up a will or to commence litigation over some commercial matter. By the very nature and quality of divorce, the relationship is bound to be an intimate one. It is erroneous to suggest that if a case goes to the High Court, after it has been dealt with to a great extent in the magistrates court by a solicitor, that solicitor, whatever his skills, can, by means of a brief, convey to a barrister the nuances and shades that have been conveyed to him.
I am not concerned for the handful of cases involved. It is not a battle for work. I want to ensure that the client does not sometimes undergo the dismaying experience of a young barrister coming in utterly cold, and picking up a paper to deal with a matter that has for a long time been dealt with by a solicitor in whom the client has considerable confidence. It is important that the House should realise how small the problem is and how disproportionate is the reaction that is regrettably found among hon. Members who are also members of the Bar.
In practice, in 1982 there were 344 appeals from magistrates to the divisional court of the Family Division of the High Court. That is what we are talking about.

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Mr. Hind: Does the hon. Gentleman accept that he is talking not merely about appeals, but about all divorce and ancillary matters, including custody, wardship, and so on, with which the Family Division of the High Court deals? Effectively, the provision gives solicitors a total right of audience in the Family Division of the High Court.

Mr. Abse: I wish that the hon. Gentleman would use his skills as a barrister at least to examine the Bill to see what work may still be done exclusively by a barrister. I do not want to go into the details on which the hon. Gentleman insists, but the House should appreciate that at present a solicitor is prevented by common law from conducting any proceedings in open court in the High Court, but has full rights of audience in the county court and in chambers in the High Court.
A solicitor cannot appear as an advocate in a defended suit in the High Court—a defended suit is at present


always heard in the High Court, but in future it may not necessarily be — he cannot appear as an advocate in proceedings in the High Court to commit for breach of an order of the court, including a breach of matrimonial injunction, and he cannot appear on an appeal from magistrates to the divisional court of the Family Division of the High Court. As I have said, 344 cases were involved in the latter instance in 1982, and the rest of the work is peripheral. In the majority of cases, a solicitor is unlikely to wish to conduct the case. He may advise someone that it would be wiser to instruct a barrister who has specialised in a particular area of law, embracing the issues involved in the particular case. So we are dealing with a very small number of cases.

Mr. Ivan Lawrence: As solicitors now have the right of audience in chambers in the High Court on issues including the custody of children and financial matters — which means the overwhelming number of divorce cases—it would obviously be useful to know in how many of those cases solicitors claimed their right to represent their clients. Can the hon. Gentleman tell us?

Mr. Abse: I cannot give the figure, and I very much doubt whether it is available. However, it is clear that a solicitor would not go into chambers in the High Court on such a contested issue unless he felt that he had the experience and skill to do so. Of course, some solicitors have expertise in divorce matters and others have not. Those who are barristers will know that an incompetent, bungling solicitor, who assumed the responsibility of going to the High Court without being equipped, would quickly learn that he was being more than foolish and unwise. The blunt fact is that it is only those who have the confidence to be able to deal with the issues who would seek to—

Mr. Alex Carlile: rose—

Mr. Abse: I shall not give way to the hon. and learned Gentleman because, with respect, I do not want this debate. There are many more important issues to be debated in the House.
In Committee, the Solicitor-General deployed an argument that will presumably be used again—that is that the Benson commission recommended that the rights of audience should not be extended. That was not overwhelmingly agreed, but it was accepted by the majority. That recommendation was made on the basis of certain beliefs. One of the most important was that solicitors were already overstretched and would be unable to assimilate the additional work proposed in the new clause. The Benson commission stressed that that was the important and practical consideration that moved it to make the recommendation. It was based on the assumption—indeed, recommendation of the Benson commission—that solicitors should retain their conveyancing monopoly. That recommendation will probably be overridden by Parliament. I welcome that, providing that we do not seek a change from a solicitors' monopoly to a monopoly of banks and building societies.
It is in the public interest that such monopolies should be broken. Indeed, at the centenary lunch of parliamentary Lobby journalists in January, the Prime Minister said that she would
like the Governments which she led to be seen as Governments which tackled the vested interests which have been immune for years".

Naturally, she mentioned the trade unions, local government and
the monopolies in the professions".
By trying to cling on to a particular area for which there is a special case, the Bar is behaving unwisely. The assumptions on which that Benson recommendation was made have largely been undermined. The Government are correctly prepared to override one recommendation. However, the Solicitor-General should not forget that in the House he is primarily not a barrister but a Member of Parliament, and as such his interest should be to protect not the Bar but the public interest. I believe that this measure is in the public interest.
I am not scratching round as a solicitor so that 100 cases a year can be distributed to solicitors throughout the country while the Bar loses a little work. I am not saying that there should be a fusion of the professions. I do not believe in that. There is a strong case for proper differentiation in certain areas. But the Bar has even resisted the changes in the Bill which move falteringly towards family courts. I want to see family courts established, with freedom from the adversarial style that has unfortunately left such an impression on our divorce law, and emancipation from the attitudes in criminal courts that has been mentioned. The switch in work that is embodied in the Bill should go further. That will bring us a little nearer to the time when we can have what we all want—genuine family courts that are wholly free of the present miserable adversarial system in our divorce courts.

Mr. Lawrence: Anybody who thought of coming to me with a divorce case would be advised to seek somebody better qualified to represent him or her in the courts. Therefore, I have no personal interest because the volume of my work will not be affected by the outcome of this matter, although as a practising barrister I have an interest in the integrity of the legal profession. It saddens me to notice that in a year when all has not been going well in the solicitors' profession, and in particular, although riot exclusively, it has been threatened with the deprivation of its right of conveyancing, it appears to have forgotten that we are all lawyers in the House, hated or loved as we may be, and have been for generations and centuries so, since Jack Cade's rebellion. The motto "United we stand, divided we fall", has been forgotten by the hon. Member for Torfaen (Mr. Abse) and his supporters, who seek to turn their guns on the Bar.
The position is bogus. Fusion is an issue of great importance and is worth discussing in the House. It is worth going into in great depth to see whether the recommendations and conclusions of the Royal Commission are the proper ones. Against that, I would have not the slightest complaint. The issue of fusion must inevitably arise out of a measure such as that suggested in the new clause. The hon. Member for Ipswich (Mr. Weetch) called it a narrow issue, and in that he seemed to have the support of the hon. Member for Torfaen. However, it is not a narrow issue to take away one of the central planks of the legal profession as it operates. The thin end of the wedge would soon be widened into a larger one. That issue and the debate are important, and I am not averse to discussing them. However, that they should be introduced into the law by a side wind through a Bill such as this is thoroughly objectionable and wrong.
I have no objection to considering whether members of the Bar should take their instructions directly from the


public, whether they should be allowed to set up in shops in the high street in competition, whether they should have the right of election to the Law Society or whether they should be able to undertake conveyancing. It would be a good idea if at some later stage we discussed all these matters. But it is superficial to raise the issue of fusion in this way, particularly as, when one comes to examine it, there seems to be no basis for raising it.
Labour Members have waxed long and eloquent about the relationship between the individual petitioner or an individual caught up in the miserable activities of divorce cases and the solicitor, and have talked about how close the relationship between the solicitor and the client is, and therefore how important it is that the matter be seen through to a conclusion by the solicitor who has that relationship. With that, we can all agree, but there is nothing in the existing situation and the existing state of the law that prevents that from happening. From the earliest stage to the latest, the solicitor who is in there first and who is the close friend, associate, adviser or confidant of the distressed person in the divorce case is there. That facility is not taken away.
Also, there is already the objectivity to which the hon. and learned Member for Montgomery (Mr. Carlile) properly pointed. That objectivity is vital in all matters of important law, and particularly when the legalities are involved—not the facts—and the application of the law to the particular facts of the particular case.
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What do solicitors lack? They can be there at the beginning and right through to the end. They can appear in a magistrates court where they have the right of audience in all family matters from beginning to end. They can appear in the High Court in chambers before a tribunal that considers nearly all the issues that today arise in court divorce proceedings—financial matters and custody.
It is a most interesting aspect of this new clause and its proponents that if there were so much pressure on the profession and the need were so great for solicitors to have the right of audience in the High Court, why on earth do so few of them take advantage of the right that they now have to appear in chambers, where the procedure is less adversarial and much more conciliatory? The fact that solicitors do not take advantage of the rights that they now have seems to show that there is no pressure for this change in the law that they are now demanding.
Whether solicitors do not take advantage of those rights because it would be too costly to do so, and they can make more money elsewhere, I do not know. They may not consider that they are capable of raising the specific matters on divorce law that they could raise merely because their solicitor's practice is wide and diverse and there is a limit to the amount of time that solicitors can spend in being expert in a particular part of law. Whatever the reason, the opportunity now exists for them to appear in most of the cases heard in the High Court, and they do not choose to do so.
The mainstay of the case advanced by the hon. Member for Ipswich seemed to disappear when the one remaining part of the divorce law procedures that is not open to the solicitor was surrendered by him. Sensibly and realistically, he conceded that, for the purpose of the appeals to the Court of Appeal or the House of Lords, one

wanted an expert lawyer and he was not seeking to put solicitors in that position. The same point applies with equal validity to the other feature where the law is important, and that is appeals from the magistrates court to the divisional court, where again solicitors are not able to represent their clients directly, where a point of law is always involved, and a point of law essentially.
Therefore, once the hon. Member for Ipswich concedes, as he did, that in questions of law the solicitor has less justification for representing clients than a trained, experienced and expert barrister, the whole basis of his case disappears, because in other material aspects of the divorce law the solicitor has access and the right to represent his client.
Therefore, if there is no real pressure for this change, and if there is no call in the public interest for it—as the Royal Commission seemed clearly to show, after it had treated this as a very important matter that was necessary to be decided in the public interest—and if the only reason for this is that the solicitors' profession is going through an edgy, unhappy time and is looking around for ways in which it can divert some of the attention from itself to other practitioners, apart from saying that I think that that is a sad situation, I can only say that it shows that there is no justification for this new clause and that it should be rejected.

Several Hon. Members: rose—

Mr. W. Benyon: On a point of order, Mr. Deputy Speaker. As the new clause has been proved to be defective and is admitted to be so by the mover, is there any reason why we should continue with these proceedings?

Mr. Deputy Speaker (Mr. Harold Walker): The new clause has been selected by Mr. Speaker. Therefore, it is in order for debate, and the House is entitled to debate it.

Mr. Bermingham: I did not intend to take part in the debate, as I regard the entire argument as asinine. I put it as simply as that. I put it to Conservative Members and to the hon. Member for Montgomery (Mr. Carlile) that the contributions opposing the new clause have in no way served the bench, the Bar or the solicitors' profession. At the end of the day it should be remembered that there is a client, whose interests should be paramount.
I have my own views about fusion, but this is not the occasion on which to air them, although I agree with the hon. and learned Member for Burton (Mr. Lawrence) that the subject needs to be discussed at some stage. However, if the primary debating Chamber in the land is to discuss whether High Court cases should be dealt with by solicitors or barristers, those who take part should at least know something about the way in which the other side works.
Specialisation is in no way peculiar to the Bar. Many of the major firms of solicitors have highly specialised divisions dealing with particular areas of business. In my former practice, for example, the people in the matrimonial, criminal or conveyancing departments did not cross those boundaries or become involved in any other type of work. That kind of specialisation is necessary in a modern legal practice, whether it be at the Bar or in a solicitors' practice. The argument that one part of the legal profession is more specialised or does not have enough work in a particular sphere is an insult to the entire profession and falls ill from the lips of those who make it.

Mr. Alex Carlile: Does the hon. Gentleman accept the other side of the coin, which is that there are still many firms of solicitors in which the partners are not competent to conduct matrimonial proceedings in the High Court and do not have the experience to deal with difficult matters of that kind, and that problems arise because they sometimes attempt so to do? Does he agree with the Benson commission that the nearest one can come to guaranteeing competent representation for the lay client is to retain the present system, subject to the changes made by the Bill?

Mr. Bermingham: I note with interest the multitudinous questions raised by the hon. and learned Gentleman, and I should be the first to admit that there are solicitors who lack the competence necessary to deal with certain problems and areas of the law. No doubt the hon. and learned Gentleman will acknowledge in return that there are also barristers who are not competent to deal with particular matters. Both sides of the profession are becoming increasingly specialised. That is important and right, because that is the way to provide a proper service for the client.
I should make it clear to the hon. and learned Gentleman that I am well aware of the effect of Rondel v. Worsley, which deals only with advocacy, and that solicitors are equally protected in their advocacy, but there is far more to the conduct of a case than mere advocacy. There is all the preparation, advice, and so on. Those are the areas in which I referred to the client having a remedy, whether it be against the solicitor or against the barrister.
I shall not detain the House long, as the new clause does nothing for the Bill which we are here to improve. I must tell my hon. Friend the Member for Ipswich (Mr. Weetch) that I do not intend to support the new clause, because I do not believe that this is the time or the place for the argument involved. Nevertheless, if the argument is to continue, let the two sides of the profession stop sniping at each other, as that serves no one in the profession well and certainly does not serve the interests of the client.

Mr. Richard Alexander: I am happy to follow the hon. Member for St. Helens, South (Mr. Bermingham) and to concur with much of what he said, but I intend to support the new clause.
It is sad that we have almost reached the end of the discussion of the new clause without any Conservative Member speaking in support of it. There has been a good deal of rather unseemly wrangling between the Bar and the solicitors, and we have heard a good deal about professional privileges, but I regret that it has been left to the Opposition to emphasise the interests of the client.
I declare a general interest as a solicitor, although I do not practise in matrimonial cases. I was delighted to hear the paeons of praise for the efficiency of solicitors from the hon. Member for Ipswich (Mr. Weetch), and I welcome his belated conversion. I believe that his main point remains valid. The solicitor has the general conduct of the vast part of the case involving the client. One of my hon. Friends referred earlier to clients coming in off the street, as though they were scroungers or scavengers. They are clients, from whom one takes instructions. One has discussions with them in one's room. They are not something off the street, to be regarded as beneath contempt. They are the people for whose interests we act

in a detailed and, I trust, caring manner. There is nothing disgraceful in that. To refer to solicitors taking people off the street is to demean the argument.

Mr. Alex Carlile: Does the hon. Gentleman agree that, on the recommendation of the Law Society, to which he belongs, solicitors have put signs in their windows—I commend them for it — advertising that they are solicitors and inviting people passing by to walk in off the street and seek advice for their legal problems? Does he accept, therefore, that it is quite wrong for him to suggest that I intended to demean the client by using that phrase?

Mr. Alexander: The hon. and learned Gentleman does me an injustice. My remarks related to a Conservative Member.
My main concern is to give the other side of the case from the Conservative Benches. So far, I have been the only Conservative Member to do so.

Mr. Greg Knight: Will my hon. Friend give way?

Mr. Alexander: No, I must get on.
If the new clause is not accepted, we shall allow a restrictive practice to continue in an area of great importance to the client. The House may wish to continue the restrictive practice, but it should be aware of exactly what it is doing. Excluding the Court of Appeal and the House of Lords, when barristers are used in the High Court it is not usually for earth-shattering matters requiring specialists. There is scarcely anything at High Court level to which a competent solicitor cannot attend on behalf of his client. Even if that were not the case—I believe that the hon. Member for Ipswich made this point—it is not the specialist barrister who is called in to deal with the case, but the average junior member of the Bar. He is given the brief by the clerk of the chamber, who must find someone to take on the case.
There may be cases when a specialist is needed. Obviously, those cases are more likely to arise in the Court of Appeal and in the House of Lords. If the new clause is accepted, there will be an opportunity for solicitors to deal with this matter if their clients wish. If we do not pass the new clause, we shall perpetuate a restrictive practice.

Mr. Sumberg: I shall be extremely brief, because I sense from the mood of the House that there is a desire to proceed to more fundamental matters. I speak to the new clause because, like several of my hon. Friends, I am a practising solicitor and have been for almost 20 years and because I served on the Standing Committee which discussed the new clause. I departed from the actions of most of my professional colleagues during the debate in Committee when voting and speaking against this new clause, and I see no reason this afternoon to depart from that course. I have considered this matter in great detail, and nothing I have heard this afternoon and nothing I have read since the debate in Committee has persuaded me to change my mind.
My reasons for being against the new clause are twofold. My first reason is one of principle and my second' is of a more practical nature. With respect to the reason of principle, I believe that the organisation of the English legal profession works for the advantage not only of the profession but, more importantly, of the client. The organisation of the profession is based fairly and squarely


on the fact that each branch—the Bar and solicitors—has a separate, defined and distinct function to perform. It is necessary for that process to continue so that both branches can grow and flourish.
The hon. Member for Torfaen (Mr. Abse) said that the new clause is limited in scope, and I accept that. It affects only a small number of cases. If the new clause is passed, whether its supporters like it or not, it will open the door to future arguments and pressure for a general extension of the solicitors' right of audience and, hence, a diminution in the effectiveness of the Bar and of my profession.
The principal argument in favour of the new clause—the one that has been repeated ad nauseam—is that it would allow the client to have the benefit of one advocate to conduct the case from start to finish. That argument can be applied to every legal action that comes before the courts. That is what I fear will happen if the new clause is passed.
My second reason for being against the new clause involves practicality. I believe that solicitors face a serious threat to the independence of their profession. That threat is dangerous for all of us. We need every friend that we can get, but we have not helped our cause this afternoon. The Bar is our natural ally. I believe that the debate has advanced the day when we may face further threats.
I realise that, because of this speech, I shall not gain favour with my professional colleagues. I realise, too, that I have written off my chances of ever becoming president of the Law Society. I do not believe that the mass of solicitors want this change. On their behalf, as well as mine, I ask the House to reject the new clause.

Mr. Jessel: I support the new clause. I am not a lawyer. I believe that the cult of professionalism has gone too far and is worsening. Far too many professional people in Britain are interested more in impressing other members of their profession than their clients or the general public. One finds barristers who want mainly to impress other barristers; solicitors who want mainly to impress other solicitors; doctors who want mainly to impress other doctors; farmers who want mainly to impress other farmers; engineers who want mainly to impress other engineers; accountants who want mainly to impress other accountants; soldiers who want mainly to impress other soldiers; and architects who want mainly to impress other architects are about the worst. We all know that that is true. Some people do not question that aspect, but it should be questioned. The tendency is worsened by closed shops, professional rings and restrictive practices of all sorts.
On the whole, barristers are not bad people. Some of my best friends are barristers. I believe that if one speaks to hon. and learned Members one by one, and not in public, they will acknowledge that in some ways they are part of an inward-looking profession. The new clause will tend to make barristers a little less barrister-oriented and a little more client and consumer-oriented. That is entirely healthy. I have great pleasure in supporting the new clause.

The Attorney-General (Sir Michael Havers): Some politicians seek to influence others; some politicians at least amuse others.
This new clause, which was described not in the words of the Lord Chancellor as his little ewe lamb but in the

words of the hon. Member for Torfaen (Mr. Abse), as a little new clause, is much more than a little new clause because it will provide a right of audience, as has been pointed out by my hon. Friend the Member for the Vale of Glamorgan (Sir R. Gower), not only in the High Court but in the Court of Appeal and in the House of Lords.
At present, solicitors have a right of audience in all county court proceedings, but no right of audience in any superior court, save in the High Court when the court is sitting in chambers. I take very much on board the point made by my hon. and learned Friend the Member for Burton (Mr. Lawrence), who pointed out the many occasions on which that right is not taken up. I suspect that there are two reasons why it is not taken up. First, the solicitors simply do not have the time to hang around waiting for their cases to be called. Secondly, they do not have the experience or the expertise in which the Bar has always tried to specialise. Expertise is an important aspect of this matter. There are some very difficult divorce cases, especially when considering custody and wardship, in which the expertise of some of those who practise in the family division is much sought after, because they may produce the result wanted not only by the client but by the solicitor instructing the barrister.
I have a sister who is a judge in the family division, and I often discuss with her the problems that she has. They are major problems that require a great deal of expertise and knowledge to find, in the end, the fair and true result for the client. The public interest is, therefore, being respected.
The rights of audience of solicitors and barristers were considered by the Royal Commission on Legal Services. A majority of the Royal Commission recommended that there should be no further general extension of solicitors' rights of audience. That recommendation was accepted by the Government in their response to the Royal Commission's report. I remind the House that that matter was raised as recently as 3 May in a question to my right hon. Friend the Prime Minister, who, in referring to the Royal Commission's recommendation, said that the Government had accepted that advice in 1983 and it was too early to reconsider it.
It is curious that there has been no debate on this matter during proceedings on the Bill in the other place. The matter was not even raised until a late stage during the debate in Committee. It may be that the timing is of some interest. My hon. and learned Friend the Solicitor-General pointed out in Committee that there had been no consultation on the subject and that, even if the time were ripe for reconsideration, which it was not, an essential first step before any conclusion could be reached would be to carry out consultation not only within the legal profession but among the public generally.
The hon. and learned Member for Montgomery (Mr. Carlile) spoke about this being a back-door approach. The hon. Member for Ipswich (Mr. Weetch) said that he was in favour of fusion. It seems clear that the Bill is not a suitable vehicle for such a provision. This may well be the first shot in what we know to be the Law Society's campaign to secure full rights of audience for solicitors in the proceedings. I am not suggesting for a moment that any hon. Member who has spoken in favour of the new clause is party to that.
Curiously enough, the Government have not received any formal request from the Law Society to reconsider the restrictions, although, for what it is worth, it is fair to say


that a copy of the press notice announcing the campaign was sent to the Lord Chancellor. In its evidence to the Royal Commission the Law Society did not seek extended rights of audience in the High Court, although it did for the Crown court, and the minority of the commission who favoured those extended rights of audience did so only for the Crown court.
There was lengthy discussion in Committee on whether the provision even fell within the scope of the Bill. It would seem to us to be wrong to attempt to deal piecemeal with rights of audience in the superior courts in a Bill of this nature. It is perfectly true that this involves the public interest. Because of that it cannot be slipped in through the back door. If the decision of the Royal Commission needs reconsideration, that must clearly involve the widest possible public consultation. So far there has been none.
For those reasons, I recommend the House to reject the new clause.

Mr. Weetch: I shall make no reply to the debate, but I shall seek to divide the House.

Question put, That the clause be read a Second time:—

The House divided: Ayes 53, Noes 189.

Division No. 363]
[5.42 pm


AYES


Abse, Leo
Leighton, Ronald


Atkinson, N. (Tottenham)
Loyden, Edward


Banks, Tony (Newham NW)
McDonald, Dr Oonagh


Bidwell, Sydney
Madden, Max


Blair, Anthony
Malins, Humfrey


Callaghan, Jim (Heyw'd &amp; M)
Maxton, John


Campbell-Savours, Dale
Meadowcroft, Michael


Cocks, Rt Hon M. (Bristol S.)
Mikardo, Ian


Cohen, Harry
Oakes, Rt Hon Gordon


Cook, Robin F. (Livingston)
Park, George


Cowans, Harry
Pavitt, Laurie


Davis, Terry (B'ham, H'ge H'l)
Pawsey, James


Dixon, Donald
Richardson, Ms Jo


Douglas, Dick
Roberts, Ernest (Hackney N)


Dunwoody, Hon Mrs G.
Ross, Ernest (Dundee W)


Eastham, Ken
Sheerman, Barry


Edwards, Bob (W'h'mpt'n SE)
Sheldon, Rt Hon R.


Field, Frank (Birkenhead)
Skinner, Dennis


Forrester, John
Strang, Gavin


Foulkes, George
Taylor, John (Solihull)


Fraser, J. (Norwood)
Thomas, Dr R. (Carmarthen)


Freeson, Rt Hon Reginald
Tinn, James


Harrison, Rt Hon Walter
Wainwright, R.


Holland, Stuart (Vauxhall)
Wardell, Gareth (Gower)


Home Robertson, John



Janner, Hon Greville
Tellers for the Ayes:


Jessel, Toby
Mr. Ken Weetch and Mr. Richard Alxander


Kaufman, Rt Hon Gerald



Kirkwood, Archy





NOES


Adley, Robert
Braine, Sir Bernard


Amess, David
Brandon-Bravo, Martin


Ashby, David
Bright, Graham


Atkinson, David (B'm'th E)
Brinton, Tim


Baker, Nicholas (N Dorset)
Brooke, Hon Peter


Baldry, Anthony
Bruinvels, Peter


Batiste, Spencer
Burt, Alistair


Bellingham, Henry
Carlile, Alexander (Montg'y)


Bennett, Sir Frederic (T'bay)
Carlisle, John (N Luton)


Benyon, William
Carlisle, Kenneth (Lincoln)


Best, Keith
Cash, William


Bevan, David Gilroy
Channon, Rt Hon Paul


Biggs-Davison, Sir John
Chapman, Sydney


Boscawen, Hon Robert
Chope, Christopher


Bottomley, Peter
Clark, Hon A. (Plym'th S'n)


Bottomley, Mrs Virginia
Clark, Dr Michael (Rochford)


Bowden, Gerald (Dulwich)
Clark, Sir W. (Croydon S)





Cockeram, Eric
Lyell, Nicholas


Conway, Derek
Macfarlane, Neil


Coombs, Simon
MacKay, Andrew (Berkshire)


Cope, John
Maclean, David John


Couchman, James
Madel, David


Cranborne, Viscount
Major, John


Critchley, Julian
Mather, Carol


Dicks, Terry
Mayhew, Sir Patrick


Dorrell, Stephen
Meyer, Sir Anthony


Douglas-Hamilton, Lord J.
Morris, M. (N'hampton, S)


Dover, Den
Morrison, Hon C. (Devizes)


Dunn, Robert
Murphy, Christopher


Durant, Tony
Nelson, Anthony


Dykes, Hugh
Nicholls, Patrick


Evennett, David
Onslow, Cranley


Fallon, Michael
Oppenheim, Philip


Farr, John
Ottaway, Richard


Finsberg, Sir Geoffrey
Page, John (Harrow W)


Forman, Nigel
Page, Richard (Herts SW)


Forsyth, Michael (Stirling)
Parris, Matthew


Franks, Cecil
Patten, Christopher (Bath)


Fraser, Peter (Angus East)
Pawsey, James


Freeman, Roger
Peacock, Mrs Elizabeth


Freud, Clement
Percival, Rt Hon Sir Ian


Fry, Peter
Powley, John


Gale, Roger
Raffan, Keith


Galley, Roy
Rhodes James, Robert


Gardner, Sir Edward (Fylde)
Rhys Williams, Sir Brandon


Garel-Jones, Tristan
Ridley, Rt Hon Nicholas


Gilmour, Rt Hon Sir Ian
Ridsdale, Sir Julian


Good lad, Alastair
Robinson, Mark (N'port W)


Gorst, John
Rowe, Andrew


Gow, Ian
Sackville, Hon Thomas


Gower, Sir Raymond
Sainsbury, Hon Timothy


Greenway, Harry
Sayeed, Jonathan


Griffiths, E. (B'y St Edm'ds)
Shaw, Sir Michael (Scarb')


Ground, Patrick
Shelton, William (Streatham)


Hamilton, Hon A. (Epsom)
Sims, Roger


Hargreaves, Kenneth
Skeet, T. H. H.


Harris, David
Smith, Tim (Beaconsfield)


Haselhurst, Alan
Spencer, Derek


Havers, Rt Hon Sir Michael
Spicer, Jim (W Dorset)


Hawkins, Sir Paul (SW N'folk)
Spicer, Michael (S Worcs)


Hawksley, Warren
Squire, Robin


Hayhoe, Barney
Stanbrook, Ivor


Hayward, Robert
Steen, Anthony


Heathcoat-Amory, David
Stern, Michael


Higgins, Rt Hon Terence L.
Stevens, Martin (Fulham)


Hill, James
Stewart, Allan (Eastwood)


Hind, Kenneth
Stewart, Andrew (Sherwood)


Hogg, Hon Douglas (Gr'th'm)
Sumberg, David


Holt, Richard
Tapsell, Peter


Hooson, Tom
Taylor, Rt Hon John David


Hordern, Peter
Temple-Morris, Peter


Howard, Michael
Thompson, Patrick (N'ich N)


Howarth, Alan (Stratf'd-on-A)
Thorne, Neil (Ilford S)


Howarth, Gerald (Cannock)
Thurnham, Peter


Howell, Rt Hon D. (G'ldford)
Tracey, Richard


Howell, Ralph (N Norfolk)
Twinn, Dr Ian


Hubbard-Miles, Peter
van Straubenzee, Sir W.


Hunt, David (Wirral)
Viggers, Peter


Hunter, Andrew
Waddington, David


Hurd, Rt Hon Douglas
Wakeham, Rt Hon John


Jenkin, Rt Hon Patrick
Walden, George


Johnson-Smith, Sir Geoffrey
Waller, Gary


Jones, Gwilym (Cardiff N)
Wardle, C. (Bexhill)


Jones, Robert (W Herts)
Watson, John


Kershaw, Sir Anthony
Watts, John


Key, Robert
Wells, Bowen (Hertford)


King, Roger (B'ham N'field)
Whitfield, John


Knight, Gregory (Derby N)
Whitney, Raymond


Knight, Mrs Jill (Edgbaston)
Winterton, Mrs Ann


Knowles, Michael
Wolfson, Mark


Latham, Michael
Yeo, Tim


Lawler, Geoffrey
Young, Sir George (Acton)


Lawrence, Ivan



Leigh, Edward (Gainsbor'gh)
Tellers for the Noes:


Lester, Jim
Mr. Ian Lang and Mr. Donald Thompson.


Lilley, Peter



Luce, Richard

Question accordingly negatived.

New Clause 3

ABOLITION OF TIME RESTRICTION IN DIVORCE PROCEEDINGS

'Section 3 of the Matrimonial Causes Act 1973 (in this Part referred to as "the 1973 Act") (which provides that no petition for divorce shall be presented within three years of marriage unless the leave of the court has been obtained) shall cease to have effect.'.—[Mr. Best.]

Brought up, and read the First time.

Mr. Best: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker: With this it will be convenient to consider the following amendments: No. 1 in page 2, line 8, leave out clause 1.
No. 2, in clause 1, page 2, line 15, leave out 'one year' and insert 'two years'.
No. 3, in page 2, line 15, leave out 'one year' and insert 'three years'.
Government amendments Nos. 27, 35, 36, 37, 38, 39, 40, 42, 46, 47, 57, 48, 58, 59, 49, 50, 51, 53 and 55.

Mr. Best: I hope that my right hon. and hon. Friends will not mind my pointing out that there is a free vote on new clause 3—one of those rare and delicious moments when there is a sense of freedom on the Government side of the House. One can vote according to one's conscience, completely untrammelled, and in the interests of justice.
I have no doubt that my right hon. and hon. Friends the Government Whips, whom I hold in the highest regard and affection, will not in any way seek to congregate by one of the Lobbies when I seek to divide the House later this afternoon and try to cast doubt on the validity of my statement that this is a free vote.
I am very grateful to the Department of my noble Friend the Lord Chancellor, which has given me assistance in drafting the new clause. If it were passed in conjunction with the amendment tabled by the hon. Member for Torfaen (Mr. Abse), to which I put my name, it would effectively do away with clause 1, and the new clause would fit neatly into the Bill. It would all make sense and the Bill would go forward as a sensible piece of legislation.
The new clause will enable anyone to present a petition for divorce at any time after the celebration of the marriage. I need not dwell on the existing law, as I am sure it is well known to hon. Members. In effect, there is a discretionary bar on the presentation of a petition for divorce in so far as a person is not entitled to present it within three years from the date of marriage, unless he or she can show "exceptional hardship or depravity." That is an infelicitous phrase, if I may say so with respect to the learned draftsman who coined it, and it has proved difficult of judicial interpretation.
It is a welcome move that the Bill seeks to do away with the difficult ground of "exceptional hardship or depravity." The Bill proposes to do away with the discretionary bar, which has been in existence since 1937, and to impose instead an absolute bar for one year. In other words, it will be impossible in law to present a petition for divorce within one year of the celebration of the marriage.
I shall adumbrate some examples of hardship that may well occur as a result of that proposal if the Bill is

unamended. I have no doubt that right hon. and hon. Members have other examples to cite if they catch your eye, Mr. Deputy Speaker.
I appreciate the fears of those who believe that to do away with a bar, even a discretionary bar, and to import what I would describe as the draconian imposition of an absolute bar — a novel feature in our divorce law — would be a signal to the public that the House is cheapening the institution of marriage. There is no evidence whatsoever to support that view.
I speak as one outside the pale of marriage. I shall be put right, no doubt, by those hon. Members who have the happy institution of marriage behind them, if I have got it wrong. I believe people do not think of divorce as soon as they celebrate the marriage ceremony. Perhaps it would be ridiculous to pretend that they do so.
I believe that very few people know of the law of divorce, unless and until they suffer the misfortune of marital breakdown. I suspect that lawyers—I shall not resume the debate that we have just had within the profession—collectively entertain the happy thought that the public know far more about the law than they really do. I believe that there is general ignorance of the law of divorce until people have little choice but to interest themselves in its provisions.
The evidence from Scotland, where there is no time bar on the presentation of a petition for divorce, does not support the view that marriage is thereby cheapened and leads to more divorce. Indeed, the Law Commission's report No. 116 on family law, time restrictions on presentation of divorce and nullity petitions, is set out so succinctly that I hope the House will forgive me if I merely quote from it. It states:
in England and Wales the number of divorces in the first three years of marriage is low compared with that for subsequent years of marriage and that (as is to be expected given the existence of the three year restriction on divorce) the proportion is lower than that in Scotland for the same period. In England and Wales the figures, however, increase rapidly in the fourth and subsequent years; and by the seventh year the proportion of marriages ending in divorce in the two countries has become almost equal. This statistical comparison may well be thought to weaken the force of the argument that the three year restriction has a positive role in buttressing the institution of marriage.
6 pm
That applies equally to the concept of one year. The quotation continues:
If it be accepted that the main effect of the present restriction is to delay rather than prevent divorce, it would follow that the restriction only preserves, for an arbitrary period of time, the legal bond between some couples whose marriage has in fact irretrievably broken down. The restriction cannot compel them to live together, but it can and does prevent them from creating a new legally recognised relationship. This (it may be said) is tantamount to imposing a penalty for having made a mistaken choice of partner: and the penalty may in some cases be severe — for example, a wife deserted soon after marriage might wish to re-marry and have children; a wait of three years"—
again, that applies equally to the concept of one year—
could make child-bearing difficult or dangerous for the mother and imperil the health of her child. Such cases undoubtedly involve hardship, but possibly not such as would qualify as 'exceptional' for the purposes of an application for leave to present a petition within three years from the date of the marriage.

Mr. Favell: I am grateful to my hon. Friend for giving way. My intervention will save me making a speech later. [HON. MEMBERS: "Hear, hear."]
I have studied the figures for divorces in Scotland and England for three years and subsequent years. It is


interesting that the figures are now the same after the fifth year. By the end of the fifth year, the proportion of divorces in England is now greater than in Scotland, although in the first three years it is extremely difficult to get divorced. The most important point is that if parents are compelled to live together for three years, or have to remain married, children could be born who will ultimately suffer. Children suffer from divorce more than anybody. To encourage people to stay married who, subsequently, will be divorced, and who might have children who otherwise would not be born, is a grave mistake.

Mr. Best: I am grateful to my hon. Friend. The approbation that greeted his comment that he would not make a speech will have been exceeded only by the approbation as a result of what he has just said. He has helped me a great deal.
The present law is not an absolute, but a discretionary bar. A person can present a petition for divorce within three years as long as he can show exceptional depravity or hardship. Those of us who practise in the matrimonial courts will know that that has become a fiction in many respects. The case of Fay v. Fay in the House of Lords requires a recitation of the allegations that are made, which only increases the bitterness in divorce. Before that case, it was easy for someone to go before a particular judge, who might have thought that the provision of exceptional depravity and hardship did not add a great deal to the law, and be granted an application to present a petition for divorce within three years, more or less on the nod. I say, without identifying the judiciary before which it happened, that I found that within my own experience. I have no doubt that many of my hon. Friends who are lawyers have discovered the same thing. There was great disparity between judicial interpretations of exceptional depravity and hardship.
It is interesting that a petition for divorce could be delivered before the expiry of three years if people made an application under those provisions. That contention is supported by the figures. The Law Commission, in its report No. 513 of the 1982–83 Session of the House of Commons, found that a high proportion of applications for the presentation of a petition for divorce within three years of marriage were successful. In fact, it was found that the failure rate was only 5 per cent. In other words, under the present law, 95 per cent. of those in England and Wales who wish to present a petition for divorce within three years and hang it on the basis of exceptional hardship or depravity can now do so within three years. Therefore, effectively, there is no bar at present. I hope that that is an endorsement of what I am seeking to do in the new clause—to ensure that what is now largely the practice is enshrined in legislation.

Mr. John Page: My intervention may save the House a speech from me, too.
Has not my hon. Friend put an Exocet on his own case? The fact that 95 per cent. of cases succeed means that there were exceptional reasons for that. Therefore, it is sensible to leave things as they are, let the exceptional cases be obviously shown and let the other people go on to try and make the best they can of the dicey business of trying to stay married for three years.

Mr. Best: I am afraid that I cannot agree with my hon. Friend, much though I am loth to disagree with him. I am

forced to say to him that the Bill proposes an absolute bar for one year. The exceptional cases will have no relief and no chance. Those people will have to live in misery for 12 months, technically married, although they may not live together, before they can present a petition for divorce.

Mr. Anthony Nelson: Surely the point is that things will not remain the same. The point of the clause is that a new restriction will be introduced by the Bill which will cause great hardship, unless my hon. Friend's new clause is carried.

Mr. Best: Again, with unerring accuracy, as we have come to expect, my hon. Friend has put his finger on the point. It is a new restriction since 1937; it is a novel concept in the law of divorce that there should be an absolute bar on the presentation of a petition for divorce. That is one of the reasons why it is entirely wrong for the clause to be in the Bill.
I said that considerable cases of hardship might occur. By "considerable" I mean considerable in extent rather than numerically. Only a few people who might be affected by an absolute bar would want to present a petition for divorce, although the statistics do not show that to be so at present. The numbers of those who want to remarry within one year of a divorce or the presentation of a divorce petition, or who want to form another relationship, which is sexual and might lead to marriage, might be small, but are we in the House to say that just a few do not matter? Are we to say that willingly and knowledgeably we are visiting hardship and distress on those people simply because, numerically, they are few? I hope that that is not the intention of the House.
Those people might form another association within that year, when the marriage has irretrievably broken down and there is no hope of saving it. There might be a sexual relationship, but the Legislation that the House will pass will show that we care little about adultery. That is precisely what will happen. There will be adultery — condoned condoned adultery if you like—because those people will not have the chance to present a petition for divorce within three years.
By preventing people from presenting a petition for divorce within three years, those people who find themselves in difficulty in marriage, who go to a solicitor, who then perhaps initiate proceedings for divorce and who now get the benefit of court welfare officers and all the support that the divorce court can give, will be denied that assistance for that period of 12 months.
The fundamental objection to what is proposed in the Bill is that any bar is illogical. The sole ground for divorce under our divorce law is the irretrievable breakdown of marriage. That can happen at any time after the celebration of marriage. Why put a bar of 12 months on it?
When we say that irretrievable breakdown is the sole ground for divorce, why do we say that it cannot happen before the expiry of 12 months? Why not 18 months, two months, two years or any other period? Not only is there no logical reason for saying that it should be 12 months, but there is no logical reason for saying that there should be a bar at all when one considers that a marriage can irretrievably break down at any time subsequent to the celebration of the marriage.
The reason for there being a 12 months restriction in the Bill is clear. It is "a purely social compromise". The only real reason for a one-year bar
is historical and the result to which the history gives rise.


Those are not my words but the words of Sir John Arnold, President of the Family Division of the High Court. He began his submission to the Special Standing Committee, on which I had the privilege of serving, by saying:
The purpose of Section 3 of the Matrimonial Causes Act 1973 was no doubt to help to preserve marriages which encountered early difficulties. The justification, if there be one, for the alteration sought to be introduced by Clause 1 of the Bill is that the provisions of Section 3 have not been successful in achieving that objective. While it undoubtedly is true that the persons affected by the provisions of Clause 3 are most often young and that the marriage has not yet, in many cases, become established at the point of which the relevant stresses occur, these factors by themselves do not establish that any greater maturity in the spouses or in the marriage should be likely to lead to its prolongation. This is not only because there is no inherent reason to suppose that any particular marriage would, if prolonged, be likely to succeed but also because the embargo contained in Section 3 is an isolated embargo against divorce and not one which in any sense controls the alternatives available to those who are disenchanted with their marriage; these include a legal claim for judicial separation which is not subject to any time bar, an informal separation either within the home or by leaving it and the establishment of a new, though unhallowed, relationship. All these courses are wholly destructive of marriage but do not provide any socially acceptable alternative. The escape provided within Section 3 is not widely embraced. There were 1,906 such applications in 1982. This figure may be compared with 147,763 decrees nisi granted in that year".—[Official Report, Special Standing Committee; 22 March 1984, c. 75.]
It is, therefore, apparent that not many people are waiting for the expiry of the three-year period before wanting to present a petition for divorce.

Mr. Humfrey Malins: Given that the first few months of marriage are often the hardest, when couples are finding it difficult to settle down together—I am not speaking of myself and my wife—does my hon. Friend not fear that if there were no bar to divorce couples unhappy in their first few months might quickly try to get divorced, whereas a bar of, say, a year—remembering that we in this House, the churches and many others want to buttress the institution of marriage — might result in those marriages staying together, thereby slightly strengthening the institution of marriage?

Mr. Best: The statistical evidence is against my hon. Friend. The comments that I have made arising from that statistical evidence, and the experience in Scotland, are also against him. In any event, it should not be the function of this House—nor is this House capable of doing so—to force people to remain married when the marriage has irretrievably broken down. It can only cause misery if we force people into that situation.
My hon. Friendthe Member for Croydon, North-West (Mr. Malins) must appreciate that temporary difficulties in marriage—within, say, the first few months—do not amount to irretrievable breakdown which gives rise to the presentation of a petition for divorce. Unless he thinks that the courts give no scrutiny to these matters and do not impose the law, his argument falls to the ground.
We in this House want to see legislation which will strengthen and support the family, but that is not achieved by ill-conceived and logically insupportable legislation. At present, we see in Britain the tragedy of one third of all marriages failing. Why do they fail? Therein lies a

capacity for a great debate into which I shall not be tempted. However, a much respected body, the Study Commission on the Family, recently reported:
We do not know the incidence of marital breakdown in the past, but the evidence supports more than a hypothesis that the divorce figures simply reflect increase in marriage and easier financial support for divorce. The most plausible explanation of the divorce figures for the past two decades is that they reveal a decline from the post-war numbers, followed by a rapid and equally continuing rise which is related to social and cultural changes much more fundamental than amendments to the terms of a somewhat limited welfare scheme.
Moreover, because the increase in divorce is a widespread phenomenon in Europe, and is not exclusive to this country, it cannot be levelled at our present divorce law. The figures for divorce, sad though they may be, have increased steadily in the last 25 years. Even if one wanted to blame the law for the increase—and I have no doubt that some hon. Members wish to do that, and it is true that there has been a sharp increase since 1971 — the problem, if there is a problem with the law, lies in the change from a fault to a no fault concept of divorce and has nothing to do with a restriction placed on the presentation of a petition for divorce. The two are completely separate issues.
I shall not enter into that argument because it goes outside the ambit of this debate. But I ask those who are seeking to blame the law for the increase in the incidence of divorce to blame the substantive law in changing from a fault to a no fault concept, rather than seeking to blame it on the absence of a restriction on the presentation of a petition for divorce. I do not believe that the law has caused an increase in divorces, but that is a debate for another day.
I am not alone in believing that there should be no time bar to presenting a divorce petition. The noble Lord Denning in another place moved an amendment to abolish any time restriction. I know that some hon. Members, particularly Opposition Members, may not always agree with some of his views, but it is universally acknowledged that he is extremely experienced in divorce and has been largely responsible for our present divorce law.
The noble Lord said that, as a matter of general principle, he wanted to see an amalgamation of the laws of Scotland and England. He thought that they should be uniform on this matter. He felt that if the two countries remain separate it would be easy enough for a couple to live in England and know that they must go to the divorce court in England and wait for three years, or whatever the period may be. He asked what would happen if a Scotsman married an English woman, or vice versa. To which jurisdiction should they go? It involved complicated research into the Domicile and Matrimonial Proceedings Act 1973 to determine that matter because a wife can and does have a separate domicile from her husband.
The noble Lord also pointed out to the other place that the Law Commission had drawn attention to the good working of the Scottish system, where there is no time limit and where a few marriages only break down within the first two or three years. In the noble Lord's experience, those marriages broke down only in extreme cases where the husband or wife went off with another person and perhaps had another child. That may answer the point made by my hon. Friend the Member for Croydon, North-West.
I believe this to be an important new clause, and I hope that the House will forgive me if I have been somewhat lengthy, but I wanted to deploy all the arguments that I believed to be valid.
No one can produce any evidence to show that a three-year bar, albeit discretionary, has saved one marriage, but we know of the considerable hardship that can occur from a one-year restriction. Should we in the House say that we must support legislation when we know that there will be hardship but cannot be sure that there is any benefit? A restriction —

Mr. Jessel: How would anyone have heard if the three-year bar had saved a marriage?

Mr. Best: If my hon. Friend is seeking to catch your eye, Mr. Speaker, no doubt he will have done his own research and will be able to give the figures, if he has been able to find any. If he has not been able to find any, my point holds good.
A restriction on the presentation of a petition for divorce can only shape an attitude of mind; it cannot save a marriage.
I use those words in answer to my hon. Friend because they are not mine; they are the words of the Law Commission. The Law Commission's working paper argued for an outright abolition of any restriction and used the words:
The evidence does not suggest that there would in fact be any significant number of precipitate divorces.
I use the Law Commission to answer my hon. Friend. I do not pretend to have sufficient evidence or knowledge and I am a lawyer.

Mr. Harry Greenway: Is not my Friend making a non-point? There is no statistical evidence one way or the other.

Mr. Best: With respect to my hon. Friend, no. We know that considerable hardship could occur if there were to be an absolute one-year restriction on the presentation of a divorce petition. I have given some examples. No doubt others will be given during the debate.

Mr. Patrick Nicholls: My hon. Friend has spoken as a divorce law practitioner. Has a couple ever come to see him to whom he has said, "You have only been married a year. You have not yet been married for three years. There is no exceptional depravity", and the couple has said, "If we cannot have a divorce for three years, we will have a reconciliation"? I doubt whether my hon. Friend has ever had that experience.

Mr. Best: I have not had that experience. My experience is that where people have discovered that their marriage has irretrievably broken down they dig up all the muck that they can to ensure that they can prove to a judge that there are grounds of exceptional depravity or hardship so that they can present a divorce petition within three years. That marriage will not be saved by having a one-year restriction or by them looking to the law to find that the law says that irretrievable breakdown cannot occur within 12 months. That is what the House will be saying if we pass the Bill unamended.
My hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) who supports this new clause spoke in the Special Standing Committee — [Interruption.] I hope that that strengthens my case. I am sure that it does. My hon. and learned Friend is a most persuasive advocate. He came to the conclusion that people are ignorant of the three-year restriction on divorce,

so it cannot affect their attitude or that of the public to marriage. That is the sole reason for having any restriction. There cannot be a time bar that has the dichotomous effect that for one year it makes people wish to stay married, but all of a sudden thereafter makes them want to divorce. If we abolished the time bar, all that the new clause would do would be to signal that divorce is not a matter that should be undertaken unless circumstances justify it.
If the Bill is passed, it will concentrate people's minds on divorce after 12 months by saying, "You can now think about divorce if you want to." It is not right that the House should do that. Divorce should be contemplated only where a marital breakdown has tragically occurred. Legislation should not point people towards divorce. That is what would happen if the Bill were passed without the new clause.
There is a duty on the House to pass good law which can be defended in logic, is of benefit to people and does not create terrible hardship for a few. If the Bill goes through unamended, we will bear that responsibility, and that is why I urge all hon. Members to support my new clause.

Mr. Ivor Stanbrook: On a point of order, Mr. Speaker. If my hon. Friend the Member for Ynys Môn (Mr. Best) were to be successful and his new clause were to become part of the Bill, it would be incompatible with clause 1 as it stands. For that reason, as I understand it, my hon. Friend has put his name, as have I and the hon. Member for Torfaen (Mr. Abse), to amendment No 1 which seeks to delete clause 1. In that case, Mr. Speaker, will you say that you will allow a separate Division on amendment No. 1?

Mr. Speaker: Yes; that is exactly what would happen.

Mr. Alex Carlile: In so far as there is evidence, it suggests that the average man or woman does not know how long he or she must wait before he or she can petition for divorce. The first time that the potential petitioner discovers when he can petition for divorce is when he walks into his solicitor's office and asks for advice. In almost every case, he walks in without the other spouse. If less than three years have passed since the date of his marriage, the solicitor tells him that he cannot petition for divorce until he has been married for three years, unless he can show exceptional depravity or exceptional hardship.
The petitioner, aided perfectly conscientiously and honestly by that skilled solicitor, and in difficult cases by the advice of counsel, can easily construct a convincing case of exceptional hardship and depravity. As the hon. Member for Ynys Môn (Mr. Best) said, that is why 95 per cent. of cases succeed. It is not because there is exceptional hardship or depravity in 95 per cent. of cases. Anyone who thinks that is totally naive, has no experience of the subject or the jurisdiction, and does not appreciate that the skills of lawyers aided by the exaggerations of their lay clients, and sometimes by the misogyny of some judges, can easily obtain leave for divorce within three years. It is wrong that the law should be in that state, and that the present bar should be a discretionary bar, through which the client and the legal profession can wangle their way so easily.
The hon. Member for Ynys Môn, who moved the new clause so ably and fully, will agree that the decision in Fay v. Fay makes little difference. Advisers must be more careful, put more paragraphs in their affidavits, be more lurid in their descriptions of alleged depravity, and more pathetic in their descriptions of alleged hardship. The present law does little credit to Parliament, the legal profession, the institution of marriage or the regrettably necessary institution of divorce.
The problem presented by clause 1 highlights some of the major faults in the Bill. The Bill and the clause represent part of the piecemeal reform of matrimonial law. It is wrong that we are discussing a Bill containing provisions to alter the time bar, however that may be done, which does not also include meaningful provisions for conciliation.
The remedy against divorce in the early stages of marriage is not to be found in general moral judgments. We must face the fact that any time bar imposed by Parliament involves a general moral judgment. The remedy against divorce in the early stages of marriage is in conciliation, bringing the parties together, discussing the issues which have arisen as differences between them and persuading them, where appropriate—in some cases it would be inappropriate — that they should give marriage another try.
I do not believe that a time bar assists conciliation or that people will be discouraged by a time bar if they have fallen out so seriously within a few weeks or months of marriage that they are going to solicitors to seek to petition for a divorce. A time bar would simply make them wait a few more weeks or months.
This subject was fully debated in Committee, and I commend to right hon. and hon. Members the views of Sir John Arnold, President of the Family Division of the High Court, which the hon. Member for Ynys Môn mentioned, and the views of Lord Scarman, who appeared to believe that a time bar provision was illogical.
There was no time bar for divorce before A. P. Herbert's Bill in 1937. It was difficult to obtain a divorce because it was expensive and legal aid was not available. The time bar arose as a parliamentary compromise when that Bill was being discussed. For 45 years that parliamentary compromise continued, albeit in an amended form as the years passed, against fierce and cogent criticism.

Mr. Stanbrook: Has the hon. and learned Gentleman considered that before 1937 it was difficult to obtain a divorce because of the restricted grounds for divorce? When the new measure was passed, the natural response of the majority was to say that at least under the new liberal conditions for easier divorce there should be a restriction within the first three years. Was that not reasonable?

Mr. Carlile: I do not wish to return to the difficulties that obstructed divorce before 1937. It created much unhappiness and hardship in the community. We are specifically debating time bars. Clause 1 and the next new clause represent yet a further parliamentary compromise, without coming to grips with the logic and merits of the issue. For those reasons, I shall support this new clause.

Sir Edward Gardner: Clause 1, which we are considering carefully because we must reach a decision

about it, reflects exactly the recommendations of the Law Commission. It removes from our divorce law what many people consider to be an obnoxious provision — the three-year bar except for cases of exceptional depravity or hardship.
When we consider the problem, it is essential to make the clear distinction between an absolute bar and a discretionary bar. The present three-year bar exists to prevent a divorce petition from being presented for three years of marriage and it is a discretionary bar. The court hearing the facts of the case can make up its mind whether the bar will prevent the parties from presenting a petition. However, the court has only two grounds upon which to make up its mind—exceptional depravity or exceptional hardship.
The House should realise as a matter of fact that since 1949, when the case of Bowden was decided, the courts have not administered the law strictly. They have been more and more inclined to grant petitions merely on the plea of exceptional hardship or exceptional depravity. What is more important—not everyone in the House may know this—the judges in the Family Division are disinclined to allow a divorce on the ground of exceptional depravity. If both grounds are pleaded, judges will almost always grant a divorce on the grounds of exceptional hardship.
As has been said at least three times — I do not apologise for repeating it—it was only in 1937, when Sir Alan Herbert's Bill came before the House, that the three-year discretionary bar was introduced into our law. Clause 1 removes that three-year discretionary bar and substitutes a one-year absolute bar. Another important factor that should be considered before anyone decides how to vote tonight on whether we should keep the law as it is or whether we should have no bar, or a one or two-year bar, is that only the parties to a divorce who have had to rely on the grounds of exceptional hardship and exceptional depravity can understand the distress and humiliation that they bring to the parties. Anyone who must rely on those grounds plunges into a sea of acrimony that drowns, and must in almost all cases drown, any hope of future understanding between the parties and, more importantly, with their children. Those who make such allegations and counter-allegations have hardly any hope of coming to sensible and unemotional decisions about the future of their children or, indeed, about the financial arrangements that will ultimately govern their lives.
I am sure that no one—I speak with confidence—in the House wishes to weaken the institution of marriage or undermine family life. However, I believe—if I did not hold this opinion firmly and steadily I would not say that we should have a one-year bar as set out in the Bill—that no law passed by Parliament will mend a broken marriage. No law that the House can pass will make a failed marriage succeed or keep together the two parties to a marriage if one or both of them have decided to separate. The edicts of the Church and the consciences of its communicants may achieve that, but the civil law never can.
6.45 pm
The difficult question is, what purpose does a time bar serve? It has been rightly said that the Scots do not have a time bar. They have never had one, and when it was suggested that they should they rejected the argument out


of hand. The Law Commission discovered that there was no convincing evidence that a time bar buttressed a marriage or generally helped the stability of marriage.
My fear is that, if we remove the time bar completely, we shall risk misunderstanding in the country at large. We could give the impression, although it would be false, that Parliament did not have the respect for the institution of marriage that it clearly does.

Mr. Andrew Rowe (Mid-Kent): It could equally be argued that the country might believe that we have once again learnt from Scottish experience, as we have often been proud to do.

Sir Edward Gardner: That view troubles many people, including me. It is difficult to answer my hon. Friend's point. There are many reasons why I support that view, but I take into account what was said in evidence to the Special Standing Committee by Sir John Arnold, the President of the Family Division. He believed that, if we removed the time bar altogether, the country might believe that we were denigrating the institution of marriage.
Lord Scarman said something which hon. Members might wish to bear in mind when they go into the Division Lobby. In his evidence to the Special Standing Committee he said that the positive effect of a time bar might be slight,
but it acts in favour of impressing upon
the minds of young people the fact
that marriage is not an ordinary contract, but a very important institution.
The House will agree with that, and it is because of those words that I turn my back on logic and certainly on my instinct that the Scots have something that we should follow. Perhaps my argument is as much psychological as logical. But I shall support the Bill as it stands.

Mr. Abse: I believe that the only difference between the view presented by the hon. Member for Ynys Môn (Mr. Best) and that presented by the hon. and learned Member for Fylde (Sir E. Gardner) is that the hon. Member for Ynys Môn is urging upon us that we create a framework of law in which a man can get married on Monday, quarrel on Wednesday and file a petition on Friday, whereas the hon. and learned Member for Fylde, going along with the view of the Government, tells us that we should create a new framework of law which has the effect of a man or woman being able to marry without excessive difficulty every 12 months.
The House has so far been presented with only two choices—either that there should be no bar at all, or that there should be a bar of 12 months. Those are not the alternatives before the House. That is why, for the support of hon. Members on both sides of the House, I have put down an amendment, the effect of which would be to wrench clause 1 completely from the Bill. I shall explain to the House in due course what should be done.
At a time when Britain is heading to the top of the divorce league in Europe, and when, if the present trend continues, one in three marriages will end in divorce, it is extraordinary that we are being asked by the Solicitor-General to ensure that in future anyone should, without procedural or substantive restriction, have the right to petition for divorce, not as now after three years, but after 12 months of marriage.
Whatever justification may be advanced for this extraordinary proposition by the Solicitor-General, surely it defies all the canons of common sense and mocks at all

our talent for political divination when we are told that, despite making divorce so rapidly available, the electors will not believe that, by the clause we are being asked to pass, we are declaring marriage to be a transient state, capable of being repudiated almost at whim.
We are being invited by the Government, fortunately in a free vote, to take this step without any legislative approval, to save legal aid money by connivance between the Treasury and the Lord Chancellor's Department, after the special procedure system has been introduced by order with such effect that almost all divorce decrees are granted without any kind of judicial supervision, judicial care or judicial hearing. We are asked to pass this clause, knowing that despite the fact that we are dealing with so young a marriage as to be measured only in months, and despite the fact that constant pleas have come for our divorce procedures to have in-built conciliation procedures, the Government are still brooding over the painfully inadequate recommendations of the Treasury-dominated interdepartmental committee on conciliation.
Worse, we are being asked to grant this easing of divorce to a very young marriage at a time when, far from augmenting reconciliation and conciliation services, the Government in their Home Office paper of 1 May revealed that they are hell-bent on withdrawing probation officers from matrimonial work, refusing to accord it the priority it desperately needs.
Many of us are opposed to the clause, as the debates showed in Committee. Although we are congruent in our conclusion that we do not want the clause, we present our anxieties with different emphases. Some find it morally offensive, some oppose it on pragmatic grounds, and some are outraged by its absurd illogicality, although let me say, in fairness to the Solicitor-General, that logic is the one attribute which he has never claimed for the clause to which he, like the Lord Chancellor, is so strangely attached.
The first and oft-repeated justification for the proposed change is that the existing rule, which requires that anyone seeking a divorce within the first three years of marriage has to establish exceptional hardship or exceptional depravity, causes distress and ill-will. That is the first argument that we have heard justifying it. Since, in cases of exceptional hardship, ill-will in any event is almost inevitable since much of the distress can be avoided by waiting for three years before obtaining the right to remarriage, and since, in the meantime, a decree of judicial separation can be obtained without difficulty which in every respect, apart from the capacity to remarry—maintenance, property, custody and access to children—safeguards the petitioner, I do not find that argument overwhelming.
I know that we live in an era of instant politics and that there is a mood around of "now, now". Perhaps those of us of my age who had to wait years—in my case six years because of the war—before we took the step at quite a late age to marry have a different sense of time. When copious tears are shed because people may have to wait before they have another marriage, and when we hear of the hardship that is caused, I think of the divorce rate of those who remarry. Common sense tells me—there seems to be a lack of it in discussing this matter—that there are good reasons, not bad reasons, for delaying remarriages. There is a syndrome known as the rebound,


and I see no reason why we should incite people to jump out of bed from one marriage and jump into bed with another.

Mr. Best: rose—

Mr. Abse: The hon. Member has had his say.
The Lord Chancellor may savagely tease the Church, as the hon. Member for Ynys Môn did in effect when he said that in opposing this the Churches are encouraging people to live in sin. I find such language, which has been used elsewhere, anachronistic and, in the pill era, totally unrealistic. For my part, aware that 40 per cent. of second marriages end in divorce, I do not understand the enthusiasm of the Lord Chancellor to create a framework of law which will facilitate the exchange of marriage partners every 12 months.
The second reason justifying the change is that there is an unacceptably wide divergence of judicial practice throughout the country in interpreting the requisite degree of hardship or depravity. That may be the subjective view of some, but the very figures which the hon. Member for Ynys Mon was quoting show that that is not happening. When he tells us that 95 per cent. of those making applications each year for a speedy divorce have their applications granted and that only 5 per cent. are rejected, surely it is a little droll to plead that we have to change the law because of a diversity of this kind.

Mr. Best: rose—

Mr. Abse: Other hon. Members want to speak. The hon. Member has to face the fact that that 5 per cent. consists of only 31 cases. The slight delay—it is only a slight delay—which they suffer before being able to remarry, and the inconvenience of the judiciary in having some interpretative difficulty, seems little enough reason for a clause to be passed which brings with it—

Mr. Best: rose—

Mr. Abse: No—the certain danger that the House will be believed by many outside to be condoning the easy in, easy out, view of marriage. If we make divorce easier to obtain after 12 months of marriage we will correctly be widely regarded as condoning a further erosion of the stability and dignity of marriage.

Mr. Best: The hon. Gentleman seems to be saying that there is now a facility for granting applications for divorce within three years, on the ground of exceptional hardship or depravity. He knows as well as I do that, following the House of Lords' decision, if such a petition is presented to a court a whole lot of muck has to be raked up and put in affidavit form, which is not commensurate with amity in such tragic matters. The hon. Gentleman cannot have it both ways. He accuses me—

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Mr. Deputy Speaker (Mr. Ernest Armstrong): Order. Interventions must be as brief as possible.

Mr. Best: What will the hon. Gentleman say to the lady who is reaching the time when she can no longer have children and who will not be able to have children if she has to wait three years to celebrate marriage?

Mr. Abse: That is clearly a case of exceptional hardship. In such a case there would be no difficulty in

obtaining a divorce under existing law. I argue, not that we should keep indefinitely an unsatisfactory law, but that we must have the capacity to tolerate doubt. We must not try to resolve the problem without taking account of the consequences to far larger numbers of people than the few who suffer exceptional hardship.

Mr. Lawrence: Will the hon. Gentleman give way?

Mr. Abse: I am anxious to continue. It is clear that many hon. Members wish to speak.
The move is partly the result of the way in which the press and television present the issue. It is certainly not the inevitable public perception which causes me to resist the clause. The prime duty of the legislature when considering divorce, and the only overwhelming reason which the legislature has for intervening in an essentially personal matter, is to ensure that the legislation protects the weak and disadvantaged. Others attempt to justify intervention by the legislature in divorce. I understand the churchmen's claims that those views are weighty, but I believe that our duty to interfere in such personal relations when a marriage ends stems from the need to protect the weak and, above all, the children.
The House should take account of the number of births conceived pre-maritally or in the first year of marriage and realise how dangerous it will be if, without any conciliation procedures, we increase the opportunities for divorce as soon as 12 months of marriage have elapsed.
Of the 570,000 legitimate live births in England and Wales in 1980, more than 70,000 were in the first 11 completed months of marriage. Another 70,000 were to mothers whose current marriage had lasted for between nine and 20 months. Most of the children were conceived in the first year of marriage.
As only 14 children each year are involved in marriages which are dissolved on the ground of exceptional hardship, the House must understand that it is putting at risk 140,000 babies each year whose parents, unlike at present, will find that without any legal plug or prohibition they can proceed to divorce.
It may be argued that I cannot prove that couples will take the opportunity to divorce after 12 months if it is given. It is not for me to prove anything. The Law Commission rightly said:
The difficulty of predicting the effect on public attitudes of any changes in the law casts a heavy onus on those who seek to justify reform.
We are not asking for the change. Those who are must satisfy us that the change will not put at greater risk young marriages in which couples have hardly settled down.
I have been married for 30 years—to only one wife. I have quarrelled during the whole of the 30 years and have had reconciliations throughout the years. If I did not quarrel, I should not experience the sweetness of reconciliation. The tolerance threshold of young people is probably lower than ours. As I get older my threshold of tolerance becomes higher. I believe that I indulge my wife—as she indulges me—more than I did in the first 12 months of marriage.
Those who want the clause have a duty, which they have not yet discharged, to satisfy us that the change will not put at extra risk marriages which would otherwise survive and within which 140,000 children a year are born or conceived. It is no use arguing that children can be born or conceived after three or four years of marriage and the parents then petition for divorce, or that a woman could


be carrying a child, perhaps unknown to her husband, in the fourth or fifth year of marriage. The statistics show that large numbers of children are born or conceived in the first 12 months of marriage. Many couples decide to marry when they find that the girl is pregnant. That might hasten the marriage. Some couples decide to marry in order to have a child. We should not be surprised that the statistics for the first 12 months of marriage are so high. We should realise the danger in the proposal.
We shall invite trouble if after 12 months we give the opportunity to a young parent to dash, without legal constraint, to the divorce court after the inevitable quarrels in the early settling down months of marriage. The House must weigh the risks of more men becoming fathers only after they have ceased to be husbands against the claimed advantages of the clause.
I shall vote against the clause, and I ask the House to wrench it from I he Bill, because I believe that it will delay the coming into effect of a divorce law emancipated entirely from the miserable doctrine of the matrimonial offence. Today we effect to have a divorce law founded on the doctrine of matrimonial breakdown. Hon. Members may ask how we can keep marriages together when they have broken down. We must face the fact that all that is required today is not real evidence of breakdown, but evidence that a partner has been unreasonable in his or her conduct, or committed adultery. Adultery may not be evidence that a marriage has broken down. Sometimes adultery is a plea for help rather than an affirmation of breakdown.
Our divorce law is founded on the doctrine of matrimonial breakdown, but evidentially the breakdown is established by declaring matrimonial offence. As a result, miserably we emblazon abroad, to the detriment of the children and the partners, the fact that one partner is said to be vicious, cruel or unreasonable and the other perhaps adulterous. Fortunately, the law commissioners are currently seized of the matter and are examining the grounds of divorce and the issue of breakdown, and we all know the way in which they and, indeed, all who are concerned with the present position are moved.
Lord Scarman, in his evidence to the Committee, knowing what we were moving towards, said:
From what I have seen of the moving social picture, I believe that a change in the grounds for divorce—if such a change comes — is likely to be the introduction of one year's separation as the ground for divorce. It is likely to be exclusively on that ground, so as to eliminate conduct from the consideration of the petition for divorce. If that happens, the new ground will have built into it the one-year bar."—[Official Report, Special Standing Committee, 22 March 1984; c. 83.]
If the clause is passed, what Lord Scarman and I look forward to, which is almost universally yearned for, is less likely to be brought about speedily, for we will have made divorce easier, and we will be seeking later, when eliminating conduct, to make it more restrictive.
All my experience in divorce law shows that to relax rules and then seek to tighten them is a formidable political task. It is because of this that so many bodies are urging us not to make this change until the law commissioners have reported. That is the strongly expressed view of those who wish finally to free us from the anachronistic and severely damaging doctrine of the matrimonial offence which is so conductive to acrimony and hatred between the parties and their children.
All around us there is a plea for postponement. This is asked for not only by the Law Society. It has been asked

for by the Conservative National Women's Council, the Association of Conservative Lawyers and by numerous bodies from all parts of the political spectrum. What is this desperate hurry while the law commissioners are sitting? We have suffered the inconveniences, which I do riot dispute, since 1937. Why are we now being urged at all costs to make this change? 'Why should we implement a bad clause, inherently illogical, when a little toleration of delay until the Law Commission has reported could result in a clause which would free us from a matrimonial offence, yet have sufficient weight for it not to be perceived, as the clause will be, as the establishment of quickie divorces devaluing the institution of marriage?
To those hon. Members who say that the delay will be too long, I say that we should tolerate some delay. I say to those hon. Members who maintain that the law commissioners may take years, and that the change will not be implemented for years, that they should remember that part II of the Bill arose originally from an Adjournment debate, in which the hon. Member for Cambridgeshire, South-West (Sir A. Grant) and I spoke, and that it was followed by the setting up of an all-party committee. I had the privilege of being chairman of that committee and of making repeated representations to the Lord Chancellor, who was wholly opposed to part II of the Bill at the time, and, because of our persistence, here we are already in 1984 considering a comprehensive Bill dealing with the financial considerations.
If we have the political will, of course we can expedite the Law Commission report. If the Lord Chancellor would pay more attention to the law commissioners, and if he would augment his staff, who are sadly depleted, I believe that there could be a speedy report on this matter, in the same way as we have had two reports on the financial matters.
Therefore, I say to hon. Members, do not be tempted, do not be seduced into believing that we have to do something. There are difficulties, but they are not of such a kind that they need to bring about a change which will be seen outside the House, whatever sophisticated arguments are advanced, as indicating that we are careless of the institution of marriage, and indifferent to the consequences that divorce has upon the family.

Mr. Roger Sims: I agree with one or two of the last sentiments expressed by the hon. Member for Torfaen (Mr. Abse), although I would not necessarily reach the position from the arguments that he used.
The hon. and learned Member for Montgomery (Mr. Carlile) said that the matter had been fully debated in Committee. That is correct. Hon. Members who have had an opportunity to read the debates in Committee will agree that that is so. Nevertheless, I am sure that it is right that such an important issue should be fully debated on the Floor of the House, should be voted upon by all hon. Members, and should be decided on a free vote.
The present position, as has been clearly described by my hon. Friend the Member for Ynys Môn (Mr. Best) and other hon. Members, is that a petition for divorce cannot be presented within three years of marriage unless exceptional hardship or depravity can be proved. The Law Commission report effectively deployed the case against continuing the hardship and depravity conditions. One effect is that members of the legal profession, when handling a divorce case, are liable to look round for a


judge believed to have, shall we say, a flexible approach to the conditions—a practice which must surely be a bad thing, and must bring the law into disrepute. Another effect is that the parties and the solicitors compile the most horrific cases of hardship or the most unpleasant accounts of depravity that they possibly can.
It is not difficult to understand how distasteful and unpleasant this procedure and the court hearings which accompany it must be, particularly the effect that it must have upon the relationship between the parties to the divorce. Many hon. Members would like to see more emphasis given to conciliation—to discussions between parties when a marriage is dead to get a sensible arrangement, financial and otherwise, when the divorce is completed.
What hope can there be of such an arrangement if, before that stage is reached, both parties have been scratching around for the most unpleasant and distasteful accusations to throw at each other? For that reason, I strongly support the abolition of the conditions of depravity and hardship. Therefore, I am against amendment No. 1, which would retain the depravity and hardship conditions.
If we abolish those conditions, and do nothing else, we shall be left with the minimum period of three years before a divorce petition can be presented. It will not be possible to initiate divorce proceedings, whatever the hardship involved. That would be the effect of amendment No. 1. The Bill proposes that for one year there should be a complete bar so that it would be impossible to bring any divorce proceedings within the first year.
The effect of new clause 3 is that there would be no restriction whatever, and a divorce petition could be brought at any time after the marriage had taken place. My concern is what the effect of whatever change we finally decide upon will be. I cannot do better than quote from the report of the Law Commission in paragraph 213:
In social terms we are concerned about the attitudes people have towards marriage and divorce. We believe that it is in the interests of society that the institution of marriage be respected and that divorce be regarded as regrettable. It follows that there is an obvious danger that any move which would appear to make divorce easier to obtain would be seen as further eroding the stability and dignity of marriage.

Sir Peter Mills: I agree with my hon. Friend. Is there not a danger, if the time is reduced to one year, that the impression will be given to the public that it is almost like having a season ticket for marriage?

Mr. Sims: My hon. Friend has anticipated the comment that I was going to make. Indeed, I call in aid my hon. and learned Friend the Solicitor-General who, in Committee, said:
The commission concludes that it is important not to send out a signal that might be misinterpreted as Parliament saying that marriage is of less importance." — [Official Report, Special Standing Committee, 20 March 1984; c. 13.]
I fear that some of the proposals before us, including the one in the Bill, will send out exactly that signal.

Mr. Robert Rhodes James: rose—

Mr. Sims: I hope that my hon. Friend will not mind if I do not give way, but I should like to develop my argument.
The family is the foundation of our society, and the basis of the family is marriage. There is, of course, a religious aspect to the issue. Many of us who are of the Christian faith believe that marriage should be for life—although, of course, most of the Christian churches accept that we are all imperfect and fallible and make mistakes.
I confess that I should have liked a lead to have been taken in this important matter by Church leaders —[HON. MEMBERS: "Hear, hear."] They are very quick to make comment — sometimes, I fear, somewhat ill-informed—on issues such as the British Nationality Act, the Police and Criminal Evidence Bill, and the proposals regarding the GLC, but alas, on an issue such as this, on which they are knowledgeable and informed, they speak with divided and muted voices.
However, let us look at the issue purely from a secular point of view. It must be in the interests of society to support marriage. It cannot be good for Parliament to appear to diminish the status of marriage. Sir John Arnold told the Committee:
I said that the bar was widely regarded as something of a deterrent to divorce, and that it was therefore to some extent a buttress to the institution of marriage. For that reason, I do not think that you would be justified in removing it altogether, because that would denigrate the institution.
The Chairman turned to Lord Scarman and said:
Would you agree with that, Lord Scarman?
Lord Scarman replied:
Yes, I agree." — [Official Report, Special Standing Committee, 22 March 1984; c. 91.]
I do not suggest that couples considering marriage will look at the divorce law and consider its effect. I do not suggest that they will say, "After all, we can get divorced in one or two years, so let's give it a whirl." However, I am concerned about what the perception of marriage and its importance will be. To use a term with which many politicians are familiar, I am concerned about the image of marriage. In Committee, there was some reference to any bar being purely symbolic — as though it was therefore unimportant. But symbols play a very important part in our religious and secular life. They are all-important. Indeed, there is one only a few yards from us, which we all consider to be very important. Even if a bar is purely symbolic, that is an important reason for keeping it.

Mr. Alistair Burt: Does not my hon. Friend agree that divorce and its consequences are just symptoms of the real problem, which is that couples do not prepare thoroughly for marriage? If we reduce the bar, is there not a danger that couples will be dissuaded still further from considering what they are entering into? It just will not be worth the candle to prepare as deeply for marriage as they should do, as they need not go into it considering anything other than the fact that they can easily get out of it.

Mr. Sims: My hon. Friend is, of course, right. That is all part of the general impression of marriage and the way in which people approach it. I am concerned as to what the general image of marriage would be if it became known that Parliament had approved the idea that people could enter quite lightly into marriage and that if it did not suit them, they could get out of it in a year, or—if my hon. Friend the Member for Ynys Môn has his way—tomorrow.
We can well imagine what the headlines could be in some newspapers tomorrow. They would not go into all


the finer legal points that have been debated today. They would immediately say, "The Quickie Divorce", "The Tomorrow Divorce", "Divorce within One Year", or whatever. We can well imagine the effect of the reports that would appear in the newspapers before long, about people entering into a second marriage within 18 months of their first. What would that do for the image of the institution of marriage?

Mr. Sumberg: Why does my hon. Friend think that there would be a different headline in the newspapers tomorrow if his amendment for two years was passed? What is the great merit in the extra year?

Mr. Sims: If my hon. Friend gives me a moment or two, I shall of course come to that point.
It has been argued that if a marriage has broken down irretrievably, the sooner it is ended the better. But we all know from experience that the first years of marriage, particularly the very first year, can be among the most difficult—especially with the arrival of the first child. There is a case for a minimum period before which a petition for divorce can be presented. Even if the marriage has irretrievably broken down, we should not lose sight of the fact that there is such a thing as judicial separation, which gives all the benefits of divorce except the right to marry again.
If we agree to amendment No. 1, we are left with the status quo, and the depravity and hardship conditions, which are quite unacceptable. If we accept new clause 3, we are then agreeing to the idea of immediate divorce. I believe that to be harmful, for the reasons that I have adumbrated.
That leaves us with the choice of a complete bar for three years, which is the effect of amendment No. 3. In effect, it would make divorce more difficult than at present, because we would be removing the hardship condition. The alternative is to reduce the three years to one year, as provided for in the Bill. As I have said, I fear that that would clearly make divorce much easier than it is now.
In Committee, my hon. and learned Friend the Solicitor-General said that this was a matter of compromise. Of course it must be a matter for compromise, but I am not at all satisfied that the one-year bar gets the compromise right. That is why I have tabled an amendment suggesting a two-year absolute bar. I believe that to be a satisfactory compromise between the present three-year conditional bar, and the one-year absolute bar in the Bill. This is not an issue of black and white, or right or wrong. We are looking for a compromise and for the least worst solution to an extremely difficult problem.
I believe that a two-year absolute bar would be the best compromise, and I hope that right hon. and hon. Members will reject new clause 3 and that I shall have their support when I formally move amendment No. 2.

Mr. Benyon: When I first considered this matter I took the same view as the hon. Member for Torfaen (Mr. Abse), and so convinced was I by the arguments that were put to me that I nearly voted against Second Reading. However, when I sat down and read the report of the Law Commission and, more importantly, the debates in the other place, I found my view changing. I found my view

approximating closely to what is now in the Bill. Since the proceedings in the other place we have had the deliberations of the Committee. It, too, has come down on the same side. Divorce is a tragedy, and, as has already been said, we are top of the league in the percentages of marriages that go wrong. This is a serious situation, and none of us can view it with any equanimity or satisfaction.
The choice seems to lie, and this was put clearly by my hon. and learned Friend the Member for Fylde (Sir E. Gardner), between what we have in the Bill—with due respect to my hon. Friend the Member for Chislehurst (Mr. Sims)—and the new clause moved by my hon. Friend the Member for Ynys Môn (Mr. Best). I listened carefully to my hon. Friend's explanation of the proposals in the new clause, but I could not follow him when he started to describe how unjust it would be to have an absolute bar for one year. With the best will in the world, and taking into account all one's experience with different couples in this situation, I cannot find myself agreeing that one year produces an unnecessarily long period of hardship.
The real answer to all this is that the law has lost its place in this deliberation. I do not blame the changes in the law for the large number of divorces that now take place. I am convinced that other matters play a very much more important part in this. Therefore, the proposals in the Bill are a logical tidying up of the law and an effort to be fairer to all the parties. My point is that all the efforts, going back to the A.P. Herbert Bill in 1937, and the efforts of the hon. Member for Torfaen (Mr. Abse) have led towards making divorce easier, to correcting what has seemed to be the hardships of the people who are thereby involved, and to safeguarding the position of children.
Now is the time to put the emphasis the other way and to ensure that the greatest action that the Government can take goes towards preserving and strengthening the institution of marriage, whether by education, counselling or by supporting financially those organisations that are set up to help and strengthen the institution of marriage. That is where the effort should go now, because the effort before has always been the other way—towards divorce and the break up of marriage and the family.
Rest assured, we must do this in the circumstances. If the present trends continue, the social fabric of this country will be greatly damaged. Enormous problems result from the breakdown of marriage and divorce, whether it is juvenile delinquency, financial cost to the taxpayer in so many ways or the difficulties in housing. Only last Friday, when I was holding my advice bureau in my constituency, a couple in perfect harmony came to me after their divorce had taken place. They had three children, aged six, five and four, and they could not understand why the council could not give them two homes, because they had joint custody. I mention that in passing, because this is the sort of social implication that we are finding all the way through.
I confine myself simply to the secular side. I have not mentioned any of the moral considerations which concern many of us. My hon. Friend the Member for Chislehurst has said things with which I heartily agree. However, I think that the Government have this legislation about right and I shall support it.

Mrs. Elizabeth Peacock: I have listened to the many discussions, this evening and in many other places, on this matter, and nothing that I have heard has changed my view that clause 1, which proposes to


shorten the time bar, or new clause 3, which proposes to abolish the time bar in which couples can apply for divorce, will weaken the social fabric of marriage. As we have heard, provision already exists for special cases under section 3 of the Matrimonial Causes Act 1973.
This aspect of the Bill has aroused much opposition, particularly from churchmen, women's groups, welfare organisations and some magistrates, many of whom are often directly involved with the problems from which divorced couples and their families suffer. I am sure that we are all concerned for the stability of family life. About 170,000 divorces a year take place, one in three marriages appear destined to fail, and of those, seven out of 10 divorces involve children. We have to be concerned with what happens to the children of people who divorce.
As a magistrate, I have faced the heart-rending decision of taking children into care. Let no one underestimate the tremendous impact and the traumatic effect that this has, not only on the children, but on the parents, even if they are divorced. On the social ground of the family, and the caring ground of the children disturbed by broken homes, the Bill will be a backward step in the compassionate care of all families.
I understand that those who find that they have made a painful mistake should have the opportunity to rectify that mistake, but I do not feel that the Bill will help those people. Time needs to be given for couples to reflect on what they feel is a mistake and also for planning for the future, not only for themselves, but for their children.
The number of illegitimate children born in England and Wales last year soared to a record 99,200, an increase of 10 per cent. A report issued yesterday by the Office of Population Censuses and Surveys discounts the idea that promiscuous teenagers are responsible. It says:
Numbers of illegitimate births increased to women in all age groups; but the increase of 6 per cent. for teenage mothers was only half the average increase in the number of illegitimate births to women in their 20s and 30s.
The blame for this increase in illegitimate births is put on the increasing unpopularity of marriage among young people. Fewer people married in 1982 than at any time in the previous 12 years. The statistics suggest that what we have heard this afternoon about downgrading the institution of marriage is true.
Are we further discouraging young people from getting married by reducing the value of marriage by putting too little value on the time that a marriage should last before a divorce can be applied for? I suggest that in the Bill that is what we are doing. As we have heard, marriage is a partnership, a working together, and there must be time in those early stages, which many of us know, and some of us can remember, are difficult times, for people to adjust to each other and to their circumstances. We must not take away that opportunity.
This has been a long debate, but we have heard very little about conciliation, which is and should be a growing service. Indeed, it is often provided by or at the instigation of solicitors because they see at first hand so many of the problems of early divorce.
Amendment No. 3 will leave the provision as it now is and I believe that that is the right course to follow.

Sir Ian Percival: I agree with my hon. Friend the Member for Ynys Môn (Mr. Best) that the present bar should go, although I believe that he

underestimated its significance. At one stage he seemed almost to suggest that the present provision was no bar. It is a very real bar for honest people whose marriages have broken down, even when there is depravity or hardship, if they are not prepared to exaggerate the situation. Those people face a real bar for three years. That is most unfair, because those prepared to lie and exaggerate can fool the courts.
In a previous incarnation, I had something to do with the work of the Queen's Proctor and I know that it is not possible to check on every case. The present system thus constitutes a real bar for the honest but no bar for the dishonest. Indeed, for people determined to obtain divorces whether or not they are entitled to them, the present system is a great temptation to exaggerate the position. The present bar is wrong in every way and I have no doubt that it should go.
We must then decide whether to have no bar at all or an unqualified bar of one, two or three years. I believe that it would be wrong to have no bar at all. Personally, I plump for a one-year bar, but that is a matter of judgment. No evidence can be advanced for that period rather than a two-year period. I have just one reason for believing that there should be a bar and I have narrowed it down to one year because a longer period is not necessary to achieve the purpose that I wish to achieve.

Mr. J. F. Pawsey: My right hon. and learned Friend refers to the problems of getting rid of the bar, but would it not be easier to re-examine the conditions attached? Does not the problem lie in the clauses setting out the conditions rather than in the bar itself?

Sir Ian Percival: There would be force in that argument if anyone could suggest any better conditions, but I have been in the law long enough to know that as soon as qualifications are introduced the result is a beanfeast for the lawyers and a further set of unfair comparisons. That is my view as one who has some experience of practising in that division of the law.
I have solid reasons for favouring a one-year bar and I should love to develop those reasons, but I am conscious that time is short. I believe that there must be a bar of some kind and it should be an absolute bar, because, with the best of intentions, introducing qualifications creates difficulties of the kind that we now face.
I plump for one year not on any logical grounds or because I can produce any evidence to support it but because I believe that it is sufficient to meet the purpose for which the bar should be retained. My hon. Friend the Member for Ynys Môn said that there was no logic in the bar, and that is so, but there is no logic against it either. We all know that "irretrievable breakdown" is a matter of judgment. Who is to say whether something really has irretrievably broken down? Many of us have thought that many young and not-so-young men and women could have had a very good future before them if they had put a little more effort into seeking it rather than giving up the ghost too early and concluding that their marriages had irretrievably broken down when there were good reasons to have another go at making them work. Logic does not come into it either way. I do not base my case on logic, but nor do I believe that there is any logical argument against it.
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On the subject of hardship, I agree—not for the first time, although not always—with the hon. Member for Torfaen (Mr. Abse) and with my hon. Friends the Members for Milton Keynes (Mr. Benyon) and for Batley and Spen (Mrs. Peacock). What really is the hardship? I shall be careful not to exaggerate my case, as exaggeration never helps any argument and I believe that the hardship aspect has been exaggerated. Is it so much hardship to have to wait 12 months even if the marriage has irretrievably broken down, assuming that it is possible to come to that conclusion within 12 months? I find it difficult to imagine any circumstances in which the danger of hardship—a largely hypothetical danger, I believe—is such that we should act in advance to meet it in a way that in my view could denigrate the most important institution in our lives.
My positive reason for wanting a bar of some kind is that in my view there is a real danger that the absence of any bar at all will further denigrate the institution of marriage. I take the word "denigrate" from the evidence of Sir John Arnold to the Special Standing Committee from which we have already heard quotations today. I remind the House, too, of the comments of my noble and learned Friend Lord Scarman, who agreed with Sir John Arnold that doing away with the bar altogether was not justified because it would denigrate the institution of marriage and took the view that some kind of bar should be retained to show that marriage was not just another contract but a very important institution.
The House of Commons has a very special responsibility in this. I am always influenced by the observations of persons such as the president of the Probate, Divorce and Admiralty Division and my noble and learned Friend Lord Scarman because they speak from experience, but this House has an added responsibility, because in the past 20 years we have cheapened the institution of marriage by making divorce so easy that another inch down the road would make it a straightforward post office job. We must thus be extremely careful not to take any further step, however small, in that direction.
I believe that getting rid of the present bar and substituting an absolute bar of one year would allow us to do something positive in this respect. How it will appear to the public will depend on how we sell it. I hope that the House will get rid of the three-year bar and replace it with an absolute one-year bar and then explain clearly to the public that we have got rid of a totally unsatisfactory provision—which is a real bar for the honest but no bar for the dishonest—and put in its place a sensible bar that cannot be got round and which gives people 12 months to consider seriously whether they cannot make a go of their marriage. If we do not do that, we shall further denigrate the institution of marriage. If we get rid of the present bar and institute an absolute bar of one year, we shall be able, if we wish, to sell that measure as a positive step in restoring the picture of importance that we attach to the institution of marriage.
I hope that the House will leave clause 1 alone, because it does what it should do. I shall vote against the new clause, and I ask other hon. Members to do the same.

Mr. Blair: As a member of the Special Standing Committee I found it enormously helpful to have a procedure to take evidence from a wide range of people

who were experts in their field. Having taken that evidence, it is perverse for the House to ignore its effects and simply to put the evidence to one side.
Two points emerge clearly from the evidence. I came to this conclusion with a completely open mind. The first point is that the Law Commission, when proposing the measures contained in the Bill, decided, for especially concrete and positive reasons, that a one-year absolute bar was the right measure. The Law Commission did not decide by some type of instinctive psychology that a one-year absolute bar was the right measure. Instead, the commission had an argy-bargy among its members—the commission took it slightly less coloquially, but that is more or less what it did—on whether there should be a time bar. At the end of the day, the commission decided to compromise between nought and three years and, therefore, one year was taken.
The second and most important point to emerge from the evidence given to the Committee was that there was nothing to suggest that a time bar affected people's predilection or otherwise for divorce. There was nothing to suggest that marriage would be one wit strengthened by the existence of a time bar. It is difficult to ascertain how the evidence could have shown otherwise, because in Scotland, where no such time bar exists, although the grounds for divorce are similar to or the same as those applying in England, the record on divorces in the first year of marriage is better than the record in England. The proposition that the time bar should be retained because it somehow strengthens the institution of marriage is entirely contradicted by the evidence we heard in Committee from Sir John Arnold and others who have experience of this aspect of the law.
I appreciate that there are no statistics to prove that statement, but statistics are not the only evidence. One can judge also by the experience of people practising in certain aspects of the law and during their lives. As a member of the Committee—I hope a fairly reasonable one—I had to take account of what several people told me was the case.
I say to the House — and especially to my hon. Friend the Member for Torfaen (Mr. Abse) who, with respect, I believe went slightly over the top in some of his rhetoric—that it is not sensible, when considering the position realistically, to assume that people will get divorced because of the time bar. The truth is that the time bar has nothing to do with the grounds for divorce. Petitioners for divorce in any case must show irretrievable breakdown of the marriage. There is no question that people can come to a court after a week of marriage arid say, "We want a divorce." They must show irretrievable breakdown of the marriage. That irretrievable breakdown exists either within or beyond the first year of marriage, as the case may be.
I ask Conservative Members who may support a time bar to listen carefully when the Solicitor-General presents the Government's case. They will not hear from the hon. and learned Gentleman an assertion that the time bar affects the strength of marriage as an institution. The Government's case will be that it is important to give the right signal to the public and that, if the time bar is removed, the signal will be wrong.

Sir Ian Percival: The hon. Gentleman has come near to the point I was querying. Does he agree that there is a world of difference between saying the measure will not


strengthen the bonds of marriage and saying that the lack of the measure will weaken those bonds? They are two separate aspects. The evidence given to the Committee seemed to support the second aspect, though not the first.

Mr. Blair: The Committee was given evidence that the existence of a time bar would not adversely or positively affect the strength of marriage as an institution, but it may affect the public's perception of marriage as an institution. The Government's case was that it was necessary to retain the time bar; otherwise the wrong signal would be sent to the public.
I shall explain what seems to be the fallacy inherent in the Government's case. The Government say that we shall send the wrong signal to the public if we abolish the time bar. What signal do we send to the public if we assert that the time bar is important to the institution of marriage, and that that is why we retain it, but reduce the period from three years to one year? That is the absurdity of the Government's position. The Government end up with the worst of both worlds because, on the one hand, they assert the relevance of the time bar to marriage by retaining it—that is their justification—but, on the other hand, they reduce the period from three years to one year. That is why practically any other proposition is better than the one put forward by the Government.

Mr. Sumberg: The hon. Gentleman misses the essential point that the present position is not a three-year absolute time bar but a three-year discretionary time bar. It is a matter of going not from three years to one year, but from three years with discretion to a one-year absolute. That is an important distinction.

Mr. Blair: That is, indeed, an important distinction, but it is not the distinction that will come across to the public. The public will not grapple with that distinction. Hon. Members have quoted the headlines that appeared in the papers when the proposal was first made. The hon. Gentleman is right, but I do not believe that that meets the point. I do not believe—nothing that I have been told shows otherwise — that the time bar affects the institution of marriage. If that is right, is it correct for me to support a time bar?
Symbolism in politics can be important. Statutes enshrining symbols can be a perfectly acceptable way of proceeding. If we believe that symbolism is not based on any sensible appreciation of the truth about a particular matter, we engage in putting forward not symbols but postures. We should not be engaged in that action.
The institution of marriage is valuable. The institution is strengthened not by the law but by public respect for and the attitudes of those engaging in it. A time bar will not assist marriage in any way. Given what I heard in evidence as a member of the Committee and given what my beliefs and instincts tell me, it is my duty to vote for no time bar. In doing that, I shall say clearly to the public that we do not believe that the institution of marriage will be weakened. In fact, the evidence points to the institution not being affected by the time bar. The sensible, logical, coherent and most psychologically correct thing to say is, "Let us get what we believe truthfully to be the real position." That is why I shall support the new clause.

Mr. Stanbrook: I can speak briefly to amendment No. 1 because of the excellent speeches made in support of the

general proposition, which is that the law should stay as it is and should not be amended in the way the Government wish.
It is curious to note that so many of our biggest social, legal and religious changes have been initiated outside Parliament. We have often legislated only after the argument has been made elsewhere and we have accepted that argument without proper thought and consideration and often contrary to the will of the people.
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The Law Commission is a vehicle for this sort of change. Indeed, the change that it made for mistresses to obtain a share in the estate of a deceased against the interest of the widow was made against the will of the majority of the British people. However, that is now law, largely for the reasons that are now being urged for this change.
The Law Commission, an institution composed of the most excellent lawyers and judges, does good work within its proper terms of reference. Judges are excellent at choosing the truth from different circumstances, evidence and facts. They are good at applying principles and the law to individual cases. But they are not good at making political judgments. That is the whole purpose of this place. We have to make political judgments and if we abdicate that responsibility—as we are asked to do in this case—to a rather bureaucratic body which is not elected and is not responsive to the needs of the people, we are doing democracy a disservice.
The procedure which we adopted in the Special Standing Committee was excellent. It enabled hon. Members to hear the views of experts in matrimonial law and to question them. Many of the defects in our understanding of the subject were removed as a result. That applies with especial force to parts of the Bill other than part I. I am satisfied that much of the argument about the Bill, other than part I, is about semantics. Indeed, as some of our witnesses suggested, the law which has to be applied by this Bill is largely the law which is being applied by the courts at the moment, without the need for statutory change. To that extent, the procedure of the Special Standing Committee was good in that it enabled those of us who were members to understand the changes and therefore to have our misapprehensions and misunderstandings corrected.
But part I goes beyond lawyers' law. It has to be judged not in terms of the expertise of Sir John Arnold, an excellent man and judge, or Lord Scarman, or any who gave us the benefit of their judgments. We have to make a decision in the interests of the public. We have to make it about a subject which it must be admitted impinges upon a small minority of the population.
I feel a sense of humility in discussing this matter publicly in the knowledge that I have been particularly fortunate in the happiness I have enjoyed over the past 38 years of my marriage. I appreciate that it is not for me to add to in any way or to perpetuate any hardship which may be suffered by less fortunate individuals as a result of the existing law. Nevertheless, we owe it to the public to pass laws which we believe to be right and just which are designed to ameliorate differences and difficulties among people. Therefore, I simply do not believe the argument that clause 1 is a proper and acceptable compromise.
The present law provides for a three-year bar, with the power of discretion in the courts. That formula is and


should be acceptable and is far better than any of the suggested solutions and compromises which have been advanced either by the Government or by my hon. Friends. I do not understand the argument of my hon. and learned Friend the Member for Fylde (Sir E. Gardner) that the bar cannot be dispensed with completely because that would give a bad impression but that it can be reduced from three years to one year, which would not give such an impression. What is so bad about dispensing with the bar of three years which does not apply to reducing it from three years to one year?
What is worse is to substitute an absolute bar, with no discretion. My hon. Friend the Member for Chislehurst (Mr. Sims), who is my constituency neighbour and whose judgment I value, thinks that it would be acceptable as a compromise—as if one had to compromise in such a matter where the existing law is right and appropriate—to have an absolute bar for two years. There must be some injustice about that. It is bad enough for the Government to say that there must be an absolute bar to divorce for one year. Is it not far better to accept what we have—a three-year bar but provision for exceptions? It is so easy to choose a middle position and say that it is right.
From where does the pressure come for such a change? The Committee received many memoranda. I have piles of documents which were sent in either by institutions or pressure groups, as well as the official briefing documents from the Lord Chancellor and my right hon. and learned Friend the Attorney-General. I also received hundreds of letters from individuals wanting to give the Committee the benefit of their experience and suggesting how the law should be changed in one way or another. Working through those documents, it was difficult to avoid being confused. One is bound to come to the conclusion that no good argument has been made for changing the law at all.
Three years with discretion in the court is a sound and wise provision which in the long run does less injustice than any of the other provisions which have been suggested. For that reason I ask the House to support amendment No. 1.

Mr. Simon Hughes: The conclusion to which I shall come is that reached by the hon. Members for Torfaen (Mr. Abse) and for Orpington (Mr. Stanbrook). It is the wrong time to change the law in the way proposed by the Government. We speak in this debate as individuals, and the debate is much the better for that. We are all learning and respecting much more the opinions of colleagues than we often do and should.
I start from the position that marriage is a Christian institution, which is ordained. Like many others, I believe that the creator of mankind ordained it as the best form of relationship—not for everybody, but where possible. It is now generally accepted—certainly in Britain and also in many other countries—that in social and sociological terms it is the best form of relationship. So our secular law has also come to ordain marriage and to sustain it over the years in a way that enhances the good ordering of our society.
I start from the viewpoint—I came into this place a Christian, having been a Christian for some years and, as one who is no better or worse than a non-Christian—that it would be wrong for me to legislate to bind others by the laws that I derive from my faith. All of us speak from the knowledge that a minority in England subscribe

to the Christian faith and we respect and understand other minority faiths. But the majority have no faith, or are uncertain what it is. They are seeking to come to faith or are not yet confronted with the need to do so. We are legislating, therefore, primarily for people who do not accept the premise from which I begin. We must legislate for them in secular terms, as well and as properly as for anyone else.
My initial view was that it would be proper, except where there were children, for couples married by the state to divorce as and when they liked and that it was wrong for me to tell them that they should regard their secular marriage—a marriage of the state, ordained by the state—as an institution with sacramental or permanent value from which they could not divorce themselves by agreement in the same way as they had brought themselves together in the first place.
My view was that it would be proper, therefore, to segregate the secular from the religious, as many European countries do. We are all aware that in many continental countries one goes first to the town hall for a secular, civil marriage ceremony and then to a church ceremony if that is wished. The state gives a contractual basis and the church will give couples a sacramental partnership ordained for life. For Christians its derivation is from the Gospel teachings, which are clear and unequivocal on the subject.
The problem with the differential approach, of which I was eventually persuaded. is that the institution of marriage was ordained for everyone, whether or not he or she believed that it was the sacrament ordained as the most appropriate relationship for the best ordering of society. Therefore, the same rules and law should apply whether one is a Christian believer, a Buddhist, a Moslem, a believer in any other religion or not a believer at all.
Having come to that view, we must work from the present legal position in England and Wales, which is different from that in Scotland. Since 1937 in England and Wales there has been a restriction on the time after marriage before which one can divorce or institute proceedings for divorce. In Scotland that is not the case and it is probably correct — the hon. Member for Sedgefield (Mr. Blair) was right in his analysis—that there might not be a substantial change in the number of divorces in England and Wales, and that it might be more logical and consistent if we changed to the position in Scotland. I understand and appreciate that view.
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However, we are not starting from the same position as that pertaining to Scotland. We have a three-year bar, with discretion. In most cases that are argued for discretion on the ground of exceptional hardship or depravity, that discretion is exercised by judges and leave is granted for a petition to be presented within three years. We have heard that few people are refused permission in those circumstances.
I believe—we must all make this judgment—that before we change the present position, under which the public perceive that marriage is instituted for at least three years under secular law, but from which, in certain circumstances that make it unbearable, unsuitable or unjust to continue, they can escape, the right way to reach a more logical position is first to await the evidence. The hon. Member for Torfaen reminded the House that eminent bodies are working to produce more evidence


about the effects of irretrievable breakdown and other facts on divorce. More figures and research will be available to us within a year or two. We should wait for that evidence and then be sure to proceed in a way that upholds the institution of marriage.
My judgment is that to move from a general rule that marriages will last for three years to a rule that marriages must last for one year would be perceived as devaluing marriage as an institution. I must ask next, therefore, whether it is right to adopt the proposal in amendment No. 2 and opt for a two-year bar. That may be a way forward, but it would mean a two-year bar without a discretionary let-out for those sad and irretrievable cases where it must be right to permit the marriage to end. It would be wrong in such cases for any of us to prohibit that. There are examples of marriages in which there is severe injury, humiliation of one partner by another, physical imprisonment or great drunkenness. Those of us who have practised in the family courts well know of such cases, which come before the courts every day.
It would not be right to change the position to get rid of discretion, unless there was no time limit and a couple could divorce straight away. The right course is to bring forward proposals that uphold and support the institution of marriage which the Bill does not do, so that a positive package will result that is of benefit to the nation. If we set about that process, a framework for conciliation is needed, a move towards a structure of family courts will be needed. We must remove adversarial disputes from divorce cases. Those of us who have been involved in them know that they continue for months, to the detriment of all concerned.
The other missing factors in our present systems are methods to make sure that those who decide to marry are given the encouragement and support to continue a relationship in marriage, as far as possible, especially where children are involved. We all know—it must be a truism by now — that when marriages with children break down, more often than not it is the children who are affected most, in the short or long term, in terms of cash, in physical terms, or in emotional and moral terms.
The Bill which most should be before us should not deal with matters such as financial provisions, with which I am not most concerned tonight, where there should be changes, although not fundamental changes. The Bill we need most must bolster marriage where that option is chosen by our fellow citizens. I believe that marriage should be chosen only after careful consideration.
It is not right that our society should take the view that relationships outside marriage are generally promiscuous, or that the young are any more promiscuous than older citizens. Many people enter into a permanent relationship, but they may not choose to make it a marriage relationship. They should be entitled to that. As a Liberal, I believe that they have a right to do so. It is not for me to provide that they should feel badgered into making marriage out of that relationship.
Some people choose marriage. It is a fundamental human right to get married, but it is also a choice. When people make that decision, its importance must be reflected in our laws and supported and sustained as one of the key pivots of the ordering of our society. When marriages work, families work, relationships are effective, and an enormous amount of social legislation becomes

irrelevant. An enormous amount of money can be saved. An enormous amount of harm can be prevented by people working out their crises and recovery, through the periods of difficulty and darkness, light and joy and all the day-to-day struggles of everyday life. We are all struggling to help those who come to this decision.

Mr. Greenway: I am very interested in what the hon. Gentleman is saying, but I am concerned because it seems that he has thrown his argument about the Christian principle overboard and is saying that people can do as they like. Is not that a sad situation?

Mr. Hughes: I am saying that, just as in politics it is my job to convert people to my way of thinking but they have the right to reject my view of political life, so people come to a Christian faith or any other faith by choice. I can try to persuade them but they must elect to make their response to the Creator whom I declare is the Creator of us all. People must make that choice in society as well.
One of the tragedies in the Church today is that under the law of the land vicars and priests are obliged to marry people who come to church not wanting anything other than the social context of a church for their wedding. I do not suggest that they are not entitled to that, but it is so much better when they make a choice to marry wholeheartedly knowing what they are letting themselves in for. Therefore, if people choose not to be married and not to see their relationship in a sacramental or religious context, that is their choice. It is the job of myself and other people of religious faiths to win them to a different view of life, and why we are here, but we should not legislate to prevent them reaching other conclusions.
Therefore, for the time being, let us, if we can, reject the proposal to change the present law. I accept that the exceptional two circumstances now provided are probably too tightly drawn. We should probably adopt the Law Commission's original suggestion in its working paper, which is that in the interim we could say that if, in less than three years, the marriage has irretrievably broken down and one of the facts for divorce has been proved, that would provide the let-out. We could make that amendment.
However, let us wait for the rest of the evidence that has been commissioned and then make a proposal for changing this law, at the same time as taking other steps that many of us are awaiting with great hope and interest, for family courts, conciliation and other things. Together, they could provide a package which does not undermine marriage, which I trust is something we all want to sustain. However, marriage will be at risk to a degree which none of us can evaluate and which many of us suspect will be more than minimal if we remove the present restriction and reduce the period from three years to one.

Mr. Pawsey: I support amendment No. 1, leaving out clause 1, moved by the hon. Member for Torfaen (Mr. Abse), because I believe that the one-year limit is calculated to reduce and diminish marriage and that marriage may be regarded simply as a one-year stand.
The clause, with its time limit, will serve to underline not the permanence of marriage but a new and somewhat casual contract of rather doubtful worth. It seems that if a marriage does not work, people should not try and try again to make it work, but simply divorce and then try again with a new partner. If that partner does not suit, the person should change, discard, and marry again and if


necessary again. Increasingly, marriage would become a form of lottery; a lucky dip. If one did not like one's partner one would change. Is that really what couples promise each other when they get married? Is it what the sacred vows are about?
I was particularly interested in what my hon. Friend the Member for Chislehurst (Mr. Sims) said when he referred to the churches and the lack of lead that had been given. One might say that the silence of the churches on this issue has been deafening. I look forward to hearing my hon. Friend the Member for Wokingham (Sir W. van Straubenzee), who represents the Church Commissioners, speaking on that point.

Sir William van Straubenzee: If I am called.

Mr. Pawsey: Indeed, but that is not a matter for me.
The Churches have maintained a silence on the issue that is less than understandable. One would have thought that here was a case on which they might make a clarion call. They should have stressed their views on this all-important subject. However, it seems that at times the voice of the Churches—I refer to all the Churches—is somewhat clouded and their vision is obscured by more temporal issues, whether it is the Greater London council or the Campaign for Nuclear Disarmament. That is most unfortunate. They should have given the House a clear lead on the matter. It is unfortunate that they did not do so.
The clause is less about marriage than about a break. Its very existence will ensure that more marriages break down. Often, the first 12 months of any contract are the most difficult months, and I wonder how many five and seven-year commercial agreements would run longer than 12 months if break clauses were inserted. If one tried putting the clause, as statute, into any rental or leasing agreement, what a howl of anguish would go up from the finance houses.

Mr. Sumberg: Is not the distinction that should be drawn as follows? If the parties want the contract to continue, it will, but if they do not wish it to continue, it will not. That is the issue. It is not what the law is; it is what the intention of the parties is.

Mr. Pawsey: With respect, my hon. Friend misses my point, which is that often in commercial law parties may disagree about the issue at stake, but the law will hold them to the terms of the contract into which both parties freely entered. This case is the same.
Often, the first 12 months are difficult. I speak from the experience of having been married for 28 years. There is an old saying that one has to live with someone before one really understands that person. It is equally true, however, that, given time, solutions can be found to difficulties and that two very different people can discover each other's virtues. Twelve months just is not long enough. The clause will reduce the incentive for couples to stay together and find the solutions that so often exist. The clause will ensure that, instead of divorce being the final option, it will become the first.
My hon. and learned Friend the Member for Fylde (Sir E. Gardner) mentioned psychology. It seems that, psychologically, if both parties are aware that a break clause exists at 12 months, the incentive to persevere will

be diminished. Simply because the 12-month clause exists, it will be used, and I believe that it will be used frequently.
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Much has been said about exceptional hardship and exceptional depravity, and I fear that we may encourage the bringing of such charges. As has been said, the discretion given to the courts on this issue accentuates marital discord. It has become such a positive factor in martial discord because, as the hon. and learned Member for Montgomery (Mr. Carlile) said, many solicitors and counsel are aware of the existence of the clause and doubtless some of them refer to it when discussing matters with their clients.
If one party requires a quick divorce perhaps in the face of some opposition from the other partner, that party may plead exceptional hardship or exceptional depravity and hope that that plea will be accepted by the court. That appears to be borne out by the report of the Law Commission, which said:
The effect of this provision is said to be to encourage, if not actually to require, the petitioner to make the most unpleasant allegations possible about his or her spouse in order to make out a convincing case.
I am sure that the original intention of those two definitions was to free one partner from a particularly difficult situation, but I doubt whether those who drafted the provision and steered it on to the statute book could have anticipated where their well-meaning efforts would lead and that the provision would be used to justify a one-year marriage licence.
I do not argue that exceptional hardship and exceptional depravity do not exist. They do, and they must cause a great deal of misery in a minority of cases. It might help the House to bear in mind the numbers involved. In 1982, 1,900 applications were received under section 3 of the Matrimonial Causes Act 1973, which deals with exceptional hardship and exceptional depravity. Of those, only 843 had decrees promulgated. In that same year, 145,000 divorces went through the courts. In other words, cases involving exceptional hardship and exceptional depravity represented less than 0·5 per cent. of the total. I hope that that brings the figures firmly into perspective, because it is clear that that issue is having a decided effect on this debate.
In seeking to reduce the misery of a small minority, we are likely to increase the misery—for any divorce must bring misery in its train—for a much larger number. This House passes legislation for the best reasons, with every Act being designed to improve the lot of the majority of our fellows. That is the intention, but the reality is sometimes different. The Divorce Reform Act 1969—the easing of divorce—has not, in my view, increased the sum of human happiness. Rather the reverse, if my surgery is anything to go by.
The victims and the problems of divorce are the children, the break-up of the home and the division of property, all of which have served to multiply the hardship, bitterness and unhappiness that undoubtedly go with divorce. All, I believe, are greater today than they were in 1968, and that has been due to that well-intentioned Act which we passed in 1969.
The figures are important. In 1958, there were 22,500 divorces. In 1969, following the implementation of the Act, the number had doubled to 51,310. In 1980, following further procedural reforms, including the


introduction of the so-called quickie divorce, which at that time cost between £25 and £30, the figure had risen to 148,300 divorces. Today even that appalling total is exceeded, with 176,000 divorces a year. One marriage in three fails. If there was ever a time for a change in direction, that time is now. For too long we have gone down a road which has increasingly led to unhappiness and misery.
It is said that 70 per cent. of couples have children, a point dealt with by my hon. Friend the Member for Batley and Spen (Mrs. Peacock). More than 200,000 children each year are therefore affected by the divorce of their parents. That number of children now grow up in broken homes with only one natural parent. The House would do well to concern itself with the delinquency problems that we are storing up for ourselves. The far-reaching consequences of the increasing number of divorces—and, therefore, the number of such children—should occupy our thoughts.
I accept that the clause has been drafted in its present form for the most compassionate reasons. It will, however, exacerbate an already appalling situation. The present legislation is far from perfect, but clause 1 will not only not help; it will worsen an already bad situation.
One might take the view that the reform suggested by the Law Commission, a group possessing such expertise and knowledge of the law, must be right. If we accept that view, we will be heading towards government by expert rather than by elected Member. This House must be responsible for the political consequences of its acts. Hence, we must reach a decision based on our collective mind and not necessarily based on expert advice, however proficient that advice might be thought to be.
It might just be that the view of the Law Commission is based on experience not so much of "normal" marriage or what might be termed "normal" divorce, but of a relatively small number of particularly unpleasant cases. It might also be thought that the Law Commission is recommending throwing out the bath water and the baby. I urge hon. Members in all parts of the House, in a free vote, to oppose the clause.

Mr. David Amess: The purpose of amendment No. 3 is to protect the institution of marriage and discourage divorce. As an enthusiastic supporter of the Government, it grieves me on this matter to take issue with them. I am always ready to quote the election manifesto which we put before the electorate, but, much as I have searched to find something about this provision in our last manifesto, I have been unable to do so. Indeed, I was shocked when I first heard of this measure being suggested by the Government, for it is a most unconservative piece of legislation. I regard clause 1, as drafted, as utter madness, ill-thought out, ill-conceived and downright stupid. This is a matter on which the consequences of what is proposed are mere conjecture.
Although not a member of the Special Standing Committee, I have read the evidence presented and I am unconvinced by the arguments advanced. I believe that the family is the foundation of democracy and an ordered society. The protection of the family and democracy are fundamental traits of Conservatism in all its forms.
The increase in marriage breakdown, illustrated by the number of divorces, has now reached a crisis of alarming

proportions. It has deep political, social and religious implications for our national life. Unfortunately, there are 1·5 million children now living in 1 million single-parent families. The number of one-parent families in Basildon district, which includes my constituency, rose to 1,332 between 1971 and 1981. As the divorce rate has risen, there has been moral decay with the rate of illegitimacy, abortion, children in care and juvenile crime increasing proportionately.
The financial cost to society is over £1 billion a year, and 50 per cent. of second marriages fail. All that has happened, yet for 2,000 years the Church has preached that marriage is for life. We are only too well aware that the evil Abortion Act introduced by the leader of the Liberal party opened the floodgates to abortion, as happened to divorce after the passing of the Divorce Reform Act 1969.

Mr. Alex Carlile: Oh come on — this is cheap invective rubbish.

Mr. Amess: The hon. Gentleman may say that, but he was not here at the time.
From 1901, the number of divorces per thousand of the married population was 0·1; in 1961 it rose to 3·2, and in 1982 to an appalling 12·1. We have the third highest divorce rate in the world. The highest is America, followed by Russia. We have the highest divorce rate in Europe, whereas Italy has the lowest.

Mr. Jeremy Corbyn: rose—

Mr. Amess: I am deeply worried that the clause might encourage more young couples to rush into marriage than at present. The clause will enable those who have not given marriage the thought that it requires the opportunity to marry on an experimental basis.
One year is not even a fraction of the time needed to evaluate the true merits of marriage intended to last for life, but it is sufficient time to produce children. Do we want a society in which single-parent families are the norm and where the courts decide the level of opportunity for a majority of children at an early age?
The clause gives people whose marriages experience temporary difficulties, which are surmountable by mutual efforts, the easy way out. It takes a great deal of patience, thought and time to sustain a genuine marriage, as I often tell my wife when I arrive home after being here. The clause eliminates the need for thought.
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I deal now with the danger of the absolute bar for one year during which no petition may be presented. As has been said, it is a feeble compromise. The clause is a facade which seems to have the effect of loosening the legal restrictions while tightening up the process. It falls between two stools and satisfies no one.
Those hon. Members who share my views about the clause will no doubt leave themselves open to all manner of charges, such as being unfeeling, impractical, not accepting reality and not understanding the traumas of couples who wish to divorce. Such a criticism is grossly unfair. I should not for one minute underestimate the heartbreak of couples who intend to have a divorce. There is no doubt about the seriousness of the matters that we are debating. We are setting the moral code for future generations. This measure will unquestionably give the wrong lead.
The Conservative party continually draws to the attention of the public the need to return to a stable family life. I believe that this part of the Bill does nothing to strengthen marriage, which means, under present circumstances, that it will weaken marriage.
If the new clause is passed, will the Synod be required to amend the marriage oath to read, "For better for divorce, for richer for poorer, in sickness and in health, until one year's absolute bar do we part"?
It gives me no great pleasure to suggest to my right hon. and learned Friend that if we put through these changes tonight we will open the floodgates to divorce and regret the day that we ever took the decision. Surely we should create a climate that makes people think more carefully before entering marriage, if we believe genuinely in the institution.

Mr. Alex Carlile: rose—

Mr. Amess: There is no doubt that in the minds of the general public we are easing matters and giving the impression that the concept of marriage has altered. Society today needs more than ever the solidity that traditional marriage gives.

Mr. Carlile: rose—

Mr. Amess: It will be a sad day for our nation if we are unable to see that.

Sir William van Straubenzee: I sense that it would be in accordance with the wishes of the House that those of us who are fortunate enough to be called—I believe that we have all sat, as we should have done, from the start until now — should exercise extreme brevity. I will speak shortly and discard almost all that I would have said, because much has been said so much better by others. I cannot be sure whether I can match the moderate language of my hon. Friend the Member for Basildon (Mr. Amess).
First, mention has been made of the Special Standing Committee procedures which were exercised in relation to the Bill. If ever we needed a justification for that alteration to our procedures, which I have always thought was the most important that we have made in recent years, the Bill and the Special Standing Committee that preceded it gave outstanding evidence of its value. I am grateful to it, because I have, as I am sure have other hon. Members who were not members of the Special Standing Committee, read virtually every word and profited greatly from it.
I have gently to correct my hon. Friend the Member for Rugby and Kenilworth (Mr. Pawsey), who is once again, happily, with us, because he says that I answer for the Church of England.

Mr. Pawsey: No, the Church Commissioners.

Sir William van Straubenzee: I believe that the record will show the first version, but he corrects himself and I gratefully accept the correction. I do not believe that anyone could answer for the Church of England. I am anxious to get that right, or heaven knows what questions will be put down to me. I answer only for the Church Commissioners.
I should like to reflect the regret that has been expressed in a number of speeches that on an issue so fundamental as marriage we Anglicans—I should not presume to speak for any of the other Christian churches, such as the great one to which my hon. Friend the Member for Rugby and Kenilworth belongs—have been given virtually no guidance. The appropriate commission of the Church of

England gave evidence to the Special Standing Committee and the Bishop of Birmingham has a letter in The Timestoday. I find it strange, but it is the case — I have examined it closely — that, although his staff made a great many calls to the two Whips' offices, they would not confirm that there was a free vote on the new clause. [Interruption.] I have been into the matter carefully and that is what I am assured that they were told. I wish to establish that there is no doubt—all hon. Members saw the implication in the Bishop of Birmingham's letter—that we are totally free to make up our own minds. My friends in the Church of England are spending a deal too much time on purely political issues—sometimes at the expense of the sort of moral issue which is before us.
A third matter troubles me greatly about the Bill. It is rather personal, so I shall treat it with care. The House has been extraordinarily fortunate in having been guided ministerially by my hon. and learned Friend the Solicitor-General. He has guided us, as ever, with judicial detachment, wisdom, fairness and courtesy, which all hon. Members associate with him. Although we may not all enter the same Lobby, I want to make that point clear.
I did not feel that there was that same detachment in another place. My right hon. and noble Friend the Lord Chancellor has an emotional commitment to the provisions of clause 1, which may, for the first time, have out-weighed his supreme judicial judgment and great services to the nation. That is not a wise way to legislate, especially for delicate legislation such as this. It troubles me profoundly. Some of his outbursts in relation to the bishops of the Church of England — [Interruption.] I mean to speak with care about a much-respected public figure — caused great offence to members of the Anglican Church.
Finally, I shall vote to keep the status quo, not because I think that it is perfect — I am aware of its imperfections—nor because I shall never be prepared to change it, but—this point was put well by other hon. Members—because I wish it to be changed as part of a wider package. Members of the Church of England are for once entitled to be heard on this issue because we produced the report "Putting Asunder" which was the basis of importing into our legal system the concept of the irretrievable breakdown of marriage. I was a Back-Bench Member of the Church team that confronted the judiciary at a remarkable meeting at All Souls.
The opening statement by a leading judge was that the issue we were putting before them was not justicable. The team, headed by the then formidable Bishop of Exeter, carried the day, and we moved forward considerably. Unfortunately, we added the concept of the matrimonial offence. If we could move further, and as part of a larger examination of matrimonial law—it is under way—bring in conciliation, consider family courts and—I am not sure how far this could be done by law—consider marriage preparation, bearing m mind the hideous break-up rate of the very young, as a package, I should certainly not stick upon the conditional bar for three years. I wish the change to be part of a whole.
If we cannot achieve that tonight, second best — I cannot do this because of the order these things appear on the Amendment Paper—would be my hon. Friend's new clause, and no absolute bar. That may surprise my right hon. and hon. Friends. I urge hon. Members to reread the speech of the hon. Member for Sedgefield (Mr. Blair), who made a blistering critique of the concept of an


absolute bar, whether for one, two or three years. I am deeply worried that we may substitute a very poor alternative for an admittedly inadequate existing provision.
That is why I shall plead, not as a rigid, conservative man, but as one who has taken part in debating and changing matrimonial law, that we maintain the status quo pending wider consideration of the whole matter. That would be the proper way to proceed, and hon. Members would do, as we all wish to do, our proper duty in supporting the institution of matrimony.

Mrs. Jill Knight: Marriage is not only the concern of the two people involved. It is not even the concern of the couple and any children they may have. Marriage and family life are the hearts and cornerstones of society, and, when this institution crumbles, the whole fabric of society breaks down. Therefore, it follows that Parliament should do everything in its power to strengthen, preserve and support it. I believe that tonight we are being asked to weaken it fundamentally.
The cost of marriage breakdown to the taxpayer is immense and is rising fast. Three years ago legal aid costs for all matrimonial proceedings in the High Court and the magistrates courts were about £30 million. Today, the sum is nearly £50 million. Three years ago legal advice and assistance in connection with divorce and judicial separation was almost £8 million. Today it is £12·8 million. Three years ago one-parent benefit cost £52 million a year, and today it is £122 million. It is important to recognise that we are talking about a period of three years in which those costs soared.
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The social cost of divorce is also ruinous. Of course, I do not imply that all the children of divorced couples get into trouble, but the cost to society of difficulties with children from broken homes and one-parent families is vast in terms of delinquency, vandalism and juvenile crime. The Government know that and they deplore the breakdown of family life, but their case is that the Bill does not damage the institution of marriage. I believe that they are wrong, but I admit that, had I been forced to listen to some of the experts who addressed the Committee, I would have been very confused. The hon. Member for Sedgefield (Mr. Blair) made some excellent points on this matter.
I was amazed to read that one witness told the Committee that the courts should not apply the law of the land strictly. Does that mean that we are wasting our time passing laws and then selecting experts to come to our Committees and say that the law should not be applied strictly? I went through all the Committee reports, some of which stood reason on its head. I shall mention only a few moonbeams from the general lunacy. For example, one witness said that a one-year bar buttresses the institution of marriage, and to remove the bar would denigrate marriage. Is it buttressing marriage to tell couples about to be married that they can get divorced after one year? Would it denigrate marriage if it were not hammered home to the starry-eyed couple that the marriage could last for only one year? The Committee was told that the one-year bar is a compromise. A compromise between what—three years and one day?
We were told that available evidence shows that marriages in which the wife is aged between 20 and 24 are about 20 per cent. more likely to end in divorce than are marriages in which the wife is aged between 30 and 34. We are told:
Apart from marriages in which the wife married as a teenager, the younger the wife at marriage the longer the marriage tends to last before divorce.
That is a most puzzling statement.
However, it is clear that problems will not be solved by having a one-year bar. We were also told that
people do not many with a view to early divorce if the relationship does not work out; that young couples tend to stay married several years before resorting to divorce; that a period of years usually elapses between separation and divorce; and that the irretrievable breakdown of marriage culminating in divorce is not prevented by the three-year time bar.
In that case, why are we introducing a one-year time bar? It is difficult to see the reasoning behind the evidence given to the Committee. The more I see of experts, the more I mistrust them, because it is difficult for them to agree even among themselves.
I am extremely worried, and I beg my hon and learned Friend the Solicitor-General to appreciate that the worry about this clause and the fear that it will weaken marriage goes far beyond the House. My hon. Friend the Member for Wokingham (Sir W. van Straubenzee) was right to rebuke the Church for not giving clear guidance. I have no doubt that in the Church and in the general public many extremely worried people are asking themselves, "What on earth are the Conservative Government doing?" Whichever way one examines the matter, the clause suggests to a couple that they need be married for only one year before they can get a divorce. That must weaken marriage.
I was attracted to new clause 3 solely because, as my hon. Friend the Member for Ynys Môn (Mr. Best) said, a time bar points people to divorce. However, I did not agree with his statement that it is completely intolerable and unacceptable to have even a one-year time bar. I have been most impressed by the arguments of hon. Members on both sides of the House on the advisability of amendment No. 1, which seeks to leave out clause 1. I am a signatory to amendment No. 2, but I would rather have amendment No. 1. We shall make a grave mistake if we introduce the one-year bar, and I shall vote against it.

Mr. Lawrence: This has been a fascinating and enlightening debate, although I found some difficulty in taking seriously the lament of my hon. Friend the Member for Wokingham (Sir W. van Straubenzee) that he had received no guidance from the Anglican Church, since no one in the House is better able to think for himself so sensibly, constructively and elegantly than my hon. Friend. My hon. Friend the Member for Basildon (Mr. Amess) seemed to think that the Bill was contrary to Conservatism. My reading of Conservatism is that we are the party that believes in sensible change when it is called for. That is why this is a very Conservative Bill.
The hon. Member for Southwark and Bermondsey (Mr. Hughes), who, I think, missed his vocation, suggested that we should wait even longer for evidence. What is not generally appreciated is that the process by which we have come to this day started as long ago as 1979. Countless committees, commissions, bodies and organisations have considered how best, if necessary, to reform the law. A total of 45 organisations and 469 private individuals wrote to or spoke to the Law Commission.
My hon. Friend the Member for Orpington (Mr. Stanbrook) said that there was no sound reason for changing the law. I find that difficult to accept when the President of the Family Division, various Lords of Appeal, including Lord Scarman, the Law Commission itself, the chairman of the Family Law Bar Association, Mr. Joseph Jackson, QC., countless Members of Parliament and Lords all think there is something wrong with the law and that it needs changing. My hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) implied that the law was not operating so badly that it needed change. I think she is wrong.
The question that we have to consider is whether clause 1 undermines marriage, reduces the security of children and weakens the fabric of society, as those who wish to see no change maintain. I have been written to by churches in my constituency and by lay persons who are concerned and who have worked themselves into quite a high state of anger at the suggested changes in the law. Therefore, I have thought it important to consider the matter with great care.
I do not think that the existing situation is better than the suggested changes, and one suggested change in particular. There are two reasons why I do not think the existing law is working particularly well. First, whether we like it or not, we live in what has come to be called the permissive society. One aspect of that permissive society is that women in particular, but also men, have different expectations in their relationship from those that they would have had at the time of the Marriage Act 1937 or what preceded it. No longer are people expected to know their proper place in society, and whether they are happy or not they must stick together and live in a sort of resignation, which may or may not be short of misery. Expectations now are very different and the law is wrong if it takes no account of those expectations or of the immense amount of misery involved in outdated legislation that does not relate to a changed situation in society.
Great misery and suffering are involved in dragging people who cannot live together in pleasure and happiness through the courts of law. I do not have to repeat all that has been said about the disgusting procedures involved in proving exceptional hardship and exceptional depravity. They leave marks on the character of people which often make it impossible to reach reasonable conclusions about financial arrangements or the future of the children. One effect of the present three-year bar is that when people can no longer live together—cannot bear to live together—they go to live with someone else. The result is a very large number of illegitimate children.
A headline in the Burton Mail reads:
JP attacks new divorce plans".
The article that follows says:
The plans to allow divorce after one year instead of three should be rejected for the sake of the children involved, according to Burton magistrate, Mrs. Eleanor Hayward, the Chairman of the Burton branch of the Church of England Society".
I wonder whether people consider the suffering caused to illegitimate children as a result of parents not being able to divorce and remarry. That is an important aspect which has not yet been mentioned in today's debate. It is part of the misery and suffering created by the present law.
I also think that the existing law is bad because it is ineffective. My colleagues argue that there is a bar, as if it were an effective bar. They have said that it is a

discretionary bar. In fact, no bar exists because anyone, the day after marriage, can apply for a judicial separation. About 70 per cent. of judicial separations are applied for within the first three years of marriage. Judicial separations usually result in divorce. The problem with that system is not that it acts as a bar to divorce, but that it involves going through the law twice, which is expensive, distressing and unnecessary.
The bar is not effective and the misery caused by the existing law invites us to change the law, as it invites so many of the distinguished people who have considered the matter year in and year out. Those distinguished people have considered not only the hard cases. All our judges have worked in the Family Division. The chairman of the Family Law Bar Association deals with nothing but divorce cases and has massive experience. Not one colleague to whom I have spoken who practises at the divorce Bar thinks that anything is wrong with the Government's proposal, because the existing law is so painful and unnecessary in the causing of misery and is so relatively ineffective.
What kind of change is needed? The change must involve a time bar. I am sorry that the hon. Member for Sedgefield (Mr. Blair), who made a most effective speech, has left the Chamber. My hon. Friend the Member for Wokingham thought that his speech was a blistering demolition of the time bar concept. I do not agree.
There can be two kinds of time bar—that which causes the misery experienced today, and that which does not cause misery. A one-year time bar has been hit upon as a reasoned and enlightened compromise, because it is believed by those who work in the divorce courts that., since it takes three to six months to get a divorce going, an extra six months will not cause untold misery and hardship. Twelve months seems reasonable. We are left to decide whether we agree.
The pressures for not having a time bar are great, but the public—who are perhaps unjustifiably worried—are entitled to have their views reflected, to some extent at least, by us. The public would be reassured not only by the fact that there is a one-year bar, but by the fact that it is an absolute time bar that is stronger in the protection of marriage than the existing situation, in which the bar is discretionary and in which anybody can go running to the magistrates court the day after their marriage and get a judicial separation. Such a time bar will reassure many of the public who have elected us, and who certainly do not wish to run down the institution of marriage.
We are all agreed that marriage is an excellent and vital institution. However, we are discussing divorce, not marriage. We are considering the abolition of misery, where possible, and the substitution of rules that may alleviate some of that misery. This is no more than damage limitation.
The Government have just about got it right in the Bill. I therefore support the Government's formulation, and I reject the formulations advanced by other hon. Members.

Mr. Peter Bruinvels: I declare an interest as a member of the Church of England, a member of a diocesan synod and its board of social responsibility, and a member of the board of advisers and pastoral committee. To that extent, I have advised many couples


in matrimonial difficulties. That may seem strange, as I am obviously one of the youngest Members and have been married only three and a half years.
I believe in giving marriage a chance. I greatly value the institution of marriage. I have always understood that marriage is for life. We have all heard the phrase "Till death do us part." The proposed clause denigrates the value of marriage. We need to learn about each other, and we cannot do that in a year. We do that every day. There is something new in marriage every month and every year, and marriage grows on one. It is to me, and to many people, the most important decision in life. It is far more important than buying a house.
I am concerned at the ease with which one can obtain a divorce. I agree with my hon. Friend the Member for Bury, North (Mr. Burt) that couples must be carefully prepared before marriage. If clause 1 goes through, one could be married for only a year, and the time bar would be allowed. I hope that strong emphasis will be put on that, because one does not just walk into marriage. If it is to be for one year only, some of the young will experiment and say, "We need not be married for long. We can get out of it in a year." They have nothing to lose, because they can get a divorce. The hon. Member for Southwark and Bermondsey (Mr. Hughes) said the one-year absolute bar would do that, and I agree.
I ask my hon. and learned hon. Friend the Solicitor-General whether a shorter term will strengthen family life and public morals. I do not think that it will. We live by example, but by whose example? I mentioned learning something new each day and each month. The first few months in any marriage are the most difficult. Having recently married, I speak with experience. It takes a long time to understand what is happening. What is wrong with waiting for three years? I cannot understand why people are not prepared to do that. Two of my closest friends in different marriages are going through divorces. I know both sides of their arguments. Both are prepared to wait the full three years. Indeed, one is reluctant to have a divorce, because he believed that he had married for life. Even though the marriage has irretrievably broken down, the idea of getting divorced is abhorrent to him, a Christian with Christian values and moral decency.
There is the reverse argument that couples may grow out of marriage many years later, and one ought to consider that, too. The divorce figure for women aged over 44 is 6·6 per cent. At that age, it may be easier to divorce, because the children have grown up and a couple do not have so many responsibilities. It is obviously terrible to have a divorce, but they could at least accept it at that time. An immediate divorce leaves any child born just in or out of wedlock with a very poor start in life. My great friend, my hon. and learned Friend the Member for Burton (Mr. Lawrence), spoke about more illegitimate children appearing on the scene. Obviously there will be many more illegitimate children if people can get divorced in that first year. In many of those marriages the lady will already be expecting a baby. A period of three years would help the child. It would give him a start in life. He would have the influence of his father or mother, whereas, after the divorce, he will obviously miss out on that. In the formative years at least, parents should try to stay

together. However, I am glad that the Government are prepared to help financially in an alternative clause, and that is welcome.
I am also worried that many young people at school may suddenly think that they should avoid exams and get married. A year later they may be divorced, with no qualifications behind them. What a start in life! What a future for them!
If it is easy to obtain a divorce, people will get married again and again. It concerns me that it does not seem to be a case of just remarrying once. However, can we blame people from going round in a circle if they can get divorced after a year? I am very worried about that. As Parliamentarians, we must lead by example. The public and the country need an example. They need to know that there are good, decent values. We need to show them what family life is all about, and how this country can be protected by avoiding the devaluation of the marriage vows.
I believe that marriage vows are sacrosanct. Marriage is a serious undertaking, and no one should ever undertake it lightly. The one-year provision would encourage people to take it lightly. This debate is not about politics. It is marvellous that, for the first time since I became a Member of Parliament, we can have a free vote. The debate concerns Britain's morality, and our society. Society expects us not to destroy but to protect marriage. My hon. Friend the Member for Rugby and Kenilworth (Mr. Pawsey) spoke about the high rate of divorce in this country. Under the new clause, there will be an even higher rate of divorce, and that is very worrying. We should do better.
I know that the Government are well intentioned in introducing the clause, but, with great reluctance, I have to say that they are wrong. It is the public who should be listened to. I say that we should leave the law as it is with a three-year discretionary bar. I shall have no hesitation in supporting amendment No. 1.

Mr. Greenway: It is a great honour to bring up the rear in this historic debate. My hon. and learned Friend the Member for Burton (Mr. Lawrence) spoke about a Church of England lady. From what he said, I should have thought that she was speaking not against the children of divorced people having properly married parents, but against the suffering of those whose lives are broken by parental divorce. That is how I read it. Although I almost always agree with my hon. and learned Friend, I must say that this debate concerns not divorce, but marriage. Indeed, if it is not about marriage, I cannot have been following the debate as I should have been doing.
My views are based on a lifetime's teaching experience, culminating in running a school of 2,000 children. I saw hundreds of children who were the result of broken homes and broken marriages. At the same time, I am a member of the Church of England and have always accepted the sacrament of marriage as one of the Church's seven great sacraments. It is a principle that marriage is sacred, and for life. That does not mean that I do not understand modern society, or that there has to be provision for divorce, but, as other hon. Members have said, we should all aspire, while accepting the fallen nature of man, to that principle.
I have consulted my constituents widely on this matter and have had discussions or correspondence with members of every church of every denomination. They have all


shown great compassion in their thinking on the matter, and also great firmness in thinking that marriage is a matter for the holy spirit of God rather than for man. That is why I say that this debate is about marriage and God's interpretation of it, not about man's legal interpretation of marriage, because it is a gift of God.
I echo the unhappiness of my hon. Friend the Member for Wokingham (Sir W. van Straubenzee) who referred to the Lord Chancellor's strong and distressing remarks in the House of Lords, which upset a large number of members of the Church of England and other faiths. We need to admit, and not be afraid to say, that there is a higher authority than the Lord Chancellor, and that authority is God himself.
The Law Commission, whose recommendations are being supported by the Government in the Bill, received overwhelming endorsement for a change in the existing law. At present the court has discretion to admit petitions for divorce in less than three years of marriage, but only in cases where exceptional hardship has been suffered by the petitioners or exceptional depravity has been committed by the respondents. It is argued that this discretion positively accentuates divorce because it encourages the petitioner to make the most unpleasant allegations possible to make a convincing case. Afterwards, the financial settlement and arrangements for any children are thereby made most acrimonious.
As I understand it, each judge has his own idea of what is exceptional in these cases and no consistent standard can be set, and that is one of the central problems. This makes divorce arbitrary — of that there is no question. Some people are tempted to opt for no time bar on divorce because such a system has worked well in Scotland and because they feel that the most Christian emphasis is to prevent pain and suffering. There is no convincing evidence that a time bar operates as an external buttress to the stability of marriage, as the Law Commission said. The number of marriages dissolved by the end of 10 years of marriage is no higher in Scotland, where there is no time bar, than in England and Wales. The increasing numbers of judicial separations and petitions, most of which are followed by divorce, demonstrate that the time bar is ineffective in bolstering failing marriages. Some say that no time bar would be the most rational step, but we are not operating in terms of pure logic—that is the burden of what I have already said and what the House should take on board.
We must take into account the public's perception of the proposed change and the Christian tradition of this country. Our role as legislators must be undertaken with these things in mind above all else. It is most important that marriage remains, and is seen to remain, as the bedrock of our society. In the Bill the grounds for divorce are not changed—they are still irretrievable breakdown of the marriage—but the proposal to introduce a one-year absolute ban in place of a three-year discretionary one is not the correct step.
One year is too short, for several reasons. First, it persuades people that divorce has been made easier. Second, it devalues marriage in the public eye and gives the wrong emphasis. There is a great need to reinforce family life within marriage, to strengthen family unity and to give children the security and help that come from the psychology of happily married parents.
Third, it shows a lack of respect for Christian marriage vows and the ideal of a union that is permanent and

lifelong, for better or for worse, although many, of course, fall short of that ideal. We can have only one law in England and Wales to cover all types of marriage, but I believe that a ban of only one year would show lack of respect for our Christian traditions and vows. I support a two-year absolute ban, which I believe better meets the public interest, if I may argue it in secular terms.
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Two years may also be long enough to deter those contemplating sham marriages to achieve British nationality. I hesitate to mention that, but we know that it can happen. If there were no time limit, that might become a serious problem in some areas. Such an abuse would also seriously undermine the institution of marriage. A two-year period is also long enough to dismiss the thought that divorce has been made easier, but it is not so long to wait for those who have fallen short of the ideal marriage and may be suffering the traumas of a broken relationship, which in a minority of cases are very real and horrible and are admitted within the three-year period even under the existing law. Case history includes the wife who is pregnant by another man and the other party having syphilis, a wife going back to a former lover immediately after the honeymoon and a husband going off to be a homosexual within a few weeks of marriage. Those cases are part of legal history.
There is a small minority of cases—

Mrs. Gwyneth Dunwoody: There "are," not "is."

Mr. Greenway: There is a small minority. A singular subject takes a singular verb. The hon. Lady should remember that I used to be a schoolmaster. As I am currently marking a thousand English papers, I am somewhat sensitive about these matters.
It should be remembered that 90 per cent. of all divorces are uncontested or completed by post. We must decide whether to prolong the agony in a small minority of cases for a little longer and enshrine the value of marriage in law or to be seen as making divorce easier for all and undermining the institution of marriage. I believe that we should make it clear to the public that we value marriage as the bedrock of society. The law must be concerned with strengthening family life. I support a two-year ban rather than a three-year ban, but certainly not a one-year ban.

The Solicitor-General: I begin by expressing my gratitude for the extraordinary high quality of all the speeches that I have heard, and I believe that I have listened to all but about one and a half of the contributions to this debate. I am also grateful for the kind remarks made about me by my hon. Friend the Member for Wokingham (Sir W. van Straubenzee). My hon. Friend spoke delicately, as he put it, because he wished to make a personal comment on the handling of matters in the other place by my right hon. and noble Friend the Lord Chancellor. I must say at once—I wish to get it over at the outset—that I cannot accept my hon. Friend's gentle strictures on the conduct of my right hon. and noble Friend.
The bishops have the good fortune to occupy a Bench in the House of Lords presided over by one of the great figures of our public life, and fortunate it is that he is robust, or he would not still adorn the place that he does.


Certainly my right hon. and noble Friend argued his Bill with vigour—had he not done so, I should have thought that he was ill—but he did not, I believe, argue it with discourtesy, although he perhaps argued it under some provocation from the ecclesiastical shortcomings so accurately identified by my hon. Friend the Member for Wokingham. I believe that my right hon. and noble Friend's resolute leadership should be seen as an example, not a source of grievance.
Throughout the debate the story kept coming back to me about the papal audience granted to Mrs. Clare Boothe Luce, the new United States ambassador to the Holy See. The story is that, after a mere half-hour of being addressed, the Pope observed faintly, "Ambassador, I am a Christian, too." I, too, am in favour of marriage as an institution and wish nothing to be done to weaken it. I, too, believe that the family is the foundation of society and I regret the prevalance of divorce. The same is true of the Lord Chancellor.
All of us are faced with a statutory provision that is actively and seriously harmful. It has been found to be harmful by judges, practitioners, voluntary agencies working in this connection and the law commissioners after substantial consultation and research. The law commissioners looked at the matter not as gurus or experts but as people carrying out research. That the provision is harmful was not denied by any of the witnesses whom the Special Standing Committee called, whether legal, ecclesiastical or lay.
The debate was very complex, because a number of amendments and new clauses were helpfully grouped together, although it is not especially helpful for me in having to reply to them all. I thought it might be helpful to the House, in giving a framework to my reply, to summarise the advice that I shall offer the House. First, the abolition of all time restrictions—this matter was raised by my hon. Friend the Member for Ynys Môn (Mr. Best)—might well be unsafe in its influence on public opinion, although a logical case can be made for it.
Secondly, the amendment No. 1 option of the hon. Member for Torfaen (Mr. Abse) and my hon. Friend the Member for Orpington (Mr. Stanbrook) to keep the present law unchanged would extend the harm done at present and would not be tolerable.
Thirdly, I believe that any future time bar should be absolute, because no satisfactory alternative conditions to the present one have been devised, nor do I believe they can be devised. Fourthly, the amendment No. 2 option of my hon. Friend the Member for Chislehurst (Mr. Sims) for a two-year time bar would often cause gratuitous hardship to innocent people, and a three-year time bar, as proposed in amendment No. 3, would be worse. Accordingly, I invite the House to accept that the clause, as drafted, is right.
I shall substantiate those propositions. The Law Commission recommended the change that is embodied in the Bill because of the harm caused by the present law, about which there is general agreement. The trouble is that there is a three-year conditional bar on presenting a divorce petition which, as my hon. and learned Friend the Member for Burton (Mr. Lawrence) reminded us, is not effectively a bar. The conditions in which that bar can be lifted — exceptional hardship and depravity — are incapable of consistent enforcement, because they are

conceptually absurd. Is anyone proud of the concept of normal or non-exceptional depravity as distinct from exceptional depravity? That measure hardly adorns the law.
The conditions in which the bar can be lifted cause increased bitterness and reduce the chances of conciliation, because the allegations needed to substantiate the charge of exceptional depravity encourage the use in a petition of damaging and exaggerated allegations of a distressing and painful kind, which flow over into the subsequent negotiations to matters such as access, custody, maintenance, and so forth.
The evidence is all one way. It is very damaging and it goes plumb against what is now the common ground that if, regrettably, a marriage comes unstuck our divorce procedures must permit the legal shell to be done away with with the minimum of humiliation, distress and indignity.
Lastly, for all those reasons, the conditions are harmful because they do harm to the children. Small wonder that Lord Scarman described it as
an ugly and objectionable discretion which is causing embarrassment to judges and a good deal of hardship and bitterness to the parties whose marriage has broken down."—[Official Report, House of Lords, 21 November 1983; Vol. 445, c. 63.]
In that castigation he was supported today by my hon. and learned Friend the Member for Fylde (Sir E. Gardner), whose speech I greatly admired, and by my hon. Friend the Member for Chislehurst, supporting the two-year option, but in no doubt about the harmfulness of the present situation.
Therefore, my advice to the House has to be that an overwhelming case has been established for some change to be made. It is argued, as it always is, that we should do nothing yet because it is premature. The only difference is that it is normally argued by civil servants that it would be premature to make any sort of move proposed by politicians whereas here it is politicians who are arguing that it would be premature to make any move until the Booth committee has reported on procedure, until steps are taken to introduce further provisions for conciliation, and until the Law Commission has reported on its study of the grounds for divorce. Yet those with experience of the Law Commission and these matters generally consider that it may well be five, six or seven years before new grounds are enacted and brought into operation. That was the evidence to the Committee.
The last point of the hon. Member for Torfaen was that he hoped we would not go ahead with this because if we did it would delay the day when the sole ground for divorce was separation for one year. I am not so sure that everybody in the House—certainly on the Conservative Benches—wishes to see that day arrive. Be that as it may, five, six or seven years is surely too long to go on tolerating the harm that has been so universally identified and condemned. That is not to say that progress cannot be made on matters such as conciliation, the family court, and so on.
My right hon. and noble Friend the Lord Chancellor is proceeding with a study of ways in which conciliation can be brought forward. The conciliation services do a valuable job, but they have not proved to be particularly effective at preserving marriages that have broken down in the early days. Indeed, the primary objective of conciliation is to enable parties to resolve the issues


between them in as amicable a manner as possible. Reconciliation is not the objective, although in some cases it can be a welcome side effect.
My right hon. and noble Friend the Lord Chancellor has some money available, which he has devoted to a further study of conciliation and how conciliation services can better be encouraged, and movements are afoot for progress in the areas that have been identified, but they do not in the main require primary legislation. Therefore, we should conclude that a change should not only be made but be made now. Therefore, we should reject amendment No. 1.
That is all very fine, but what change should be made? I entirely agree that this is a matter of practical judgment, as has been said by so many hon. Members tonight. No great issue of principle or dogma is engaged, as may be seen from the rich variety of alternatives on the Amendment Paper. None of us wants to make matters worse. None of us wants to signal that Parliament somehow thinks less of marriage and regards it as an ephemeral state, not to be cherished as an institution. We all want to make our divorce procedure work acceptably and we all share a desire not to encourage more divorce.
The judgment of the Government agrees with that of the Law Commission in that, whatever change is made, it is preferable on balance to keep some time restrictions and that any such restrictions should be not conditional, but absolute.
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I owe it to the House to explain why, on balance, we think that there must continue to be a time bar, restricting the commencement of divorce proceedings. It is an opinion that is rooted in compromise, and none the worse for that. If there were more compromise in marriage, there would be less divorce. There is no doubt that an attractive and logical case can be made for having no time restriction at all. I am grateful to my hon. Friend the Member for Ynys Môn for that and for his remarks about the help that he was given by the Lord Chancellor's Department in drafting his new clause. The drafting is all right, but I advise the House that, on balance, its effect is not.
Irretrievable breakdown of marriage is the sole ground for divorce these days. Perhaps that is a pity, but it is so. Therefore, we can say that once marriage has broken down irretrievably according to the tests laid down by the law, there should be no time bar. Breakdown is established through one of the four states of fact that the House already knows about: adultery, unreasonable conduct, separation and desertion. It is at once apparent that, by these statutory criteria of whether or not a marriage has broken down, it can break down irretrievably within months, or less, of the wedding day.
Lord Denning gave examples. Within a day or a week of marriage a wife went off with her former lover and lived with him. The husband was left alone, and the wife became pregnant by her former lover. That was an actual case, and leave was given without question for an early divorce.
In another case, immediately after the wedding there was a honeymoon with an entirely heterosexual relationship. After three weeks, the husband went off with a male cousin, committed homosexuality with him, lived with him and discarded his wife. Of course, early divorce was permitted.
Early breakdowns of marriage leading to early divorce are not negligible in number—the House should attach some importance to that — although they are a tiny proportion of the total. An hon. Member rightly said that we must never regard cases as unimportant because each concerns the lives of human beings. The cases have not been negligible in number over the past three years. I can give figures if they are wanted.
An answer is needed to the question why, if the marriage has died in fact and it would be held to have died in substantive law, should procedural law insist on ensuring that its legal existence may not be ended?
The case that was put by my hon. Friend the Member for Ynys Môn is reinforced by the Scottish experience. I shall not say more about it as it has been adequately and effectively canvassed in the speech by my right hon. and learned Friend the Member for Southport (Sir I. Percival). Scotland never had and does not have a time bar now.
The Law Commission concludes from the Scottish experience that a time bar defers but does not deter divorce. There has been much support for that view in the House this afternoon. It is further reinforced by our legal history in England and Wales. We did not have a time bar after the civil courts were granted jurisdiction over divorce in 1857. What a revolutionary change that must have seemed—the green light for divorce. Yet, for all that, no time bar was imposed, and for 44 years of Queen Victoria's reign and for the first 37 years of this century there was no time bar at all, and none, evidently, was thought necessary.
Some of us reflect with nostalgia on Victorian values. If there was a greater respect for marriage in Victorian times, it owed nothing to a time bar on the commencement of divorce proceedings, for there was none, and none was thought desirable. If it is said that times were different, nevertheless adultery was still adultery, even in 1857, and divorce was available for it. If it is said that the public's attitude to marriage is different now, it has coincided with the period of the three-year time bar. As Prebendary Gladwin of the Board for Social Responsibility said, has it been caused by it? I face the fact that there is much to be said for new clause 3, but there is a difference between sticking to what has always been the arrangement and suddenly switching from a three-year bar, albeit conditional, to none at all.
My hon. Friend the Member for Croydon, North-West (Mr. Matins) made that point in his intervention, and it was made by many others. That change, which is not apparent in Scotland, might be invested with a significance, a drama, deriving from the very fact of the change itself. It may send a false signal that Parliament cares little for marriage. I entirely agree with what was said by my right hon. and learned Friend the Member for Southport (Sir I. Percival), my hon. and learned Friend the Member for Fylde and others. That thought was expressed in the evidence given to our Committee by the President of the Family Division, Lord Scarman, and, indeed, by the hon. Member for Ipswich (Mr. Weetch), whose contributions to our proceedings were of such great benefit to us all.

Mr. John Home Robertson: Referring to the point that the Solicitor-General has just made, for how long has the rule in Scotland been different from the rule in England?

The Solicitor-General: For 400 years or more. I wish that my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) were here, because he would explain how long the Scots have had this rule. They have had it for 400 years or more. It serves them well. They have rejected opportunities to make a change.
This is a matter of practical judgment, but this was the reasoning that turned the Law Commission away from recommending that we adopt the Scots arrangement, with no time restriction at all. On balance, the Government agreed, so clause 1 still provides a time bar.

Mr. John Morris: Given the evidence before the Committee, which I have read, that very few people knew the time limitation before one could bring a divorce petition, is the only argument of substance against that of the hon. Member for Ynys Môn (Mr. Best) that a false signal might come from Parliament to people who are now wholly unaware of the position?

The Solicitor-General: It is very much the most important argument against new clause 3. Perhaps not many people know that the period is now three years. However, many more will know that we have had this debate and made the change. That is the answer to the right hon. and learned Gentleman.
It is for all right hon. and hon. Members to decide for themselves. I agree with my hon. Friend the Member for Orpington, who said that it is for us to decide, and that we might bring more to the debate than experts in the Law Commission and so on. My advice to the House is to reject new clause 3 for the reasons that I have given.
However, that leaves the question, "What kind of bar?" Should it be conditional or absolute? The old conditions must go. That is common ground. Because amendment No. 1 retains them, I advise the House to reject the amendment for that reason, if for no other—and there are others.
Are there any other conditions that will serve viably to hold the line, as it were, against frivolous marriage and instant divorce, on the one hand, while giving the flexibility that is needed to prevent hardship, on the other? I can say only that no conditions have been suggested by any witness, and the Law Commission could think of none. Some got as far as saying that it should not be beyond the power of Government, and it should not be impossible to find them, but none ventured to put any forward.
There is a letter in The Times today from the Bishop of Birmingham, the chairman of the Board for Social Responsibility. That board gave evidence to the Committee through its vice-chairman and its secretary. I should like to read a passage from the evidence which showed that they said one thing in June and virtually the opposite the following March. I can only say of the Board for Social Responsibility, in this regard, that its trumpet hath sent forth an uncertain note. I agree with what my hon. Friend the Member for Wokingham said about that. One of the witnesses of the Board of Social Responsibility told us:
We find it rather difficult to suggest ways of handling the immediate needs",
and added that the board was "rather unsettled" about that. The Government must decide how to handle the immediate needs. We do not think it right simply to remain "rather unsettled" after the Law Commission's inquiry and report.
I hope that the board is not of the view that for marriages which, it agrees,
never get established and which, in the light of what is discovered in the early stages of the marriage, have no reasonable hope of ever being successful in any meaningful sense",
a three-year absolute time bar should apply in the civil law of divorce. I hope that it is not saying that. If it is, I do not think that many would see that as representing a reasonable attitude.
While the board rejected a one-year bar, it did not feel able to say what it would approve. In the absence of any satisfactory alternative conditions, the Government are clear that the Law Commission was right in recommending an absolute, not a conditional, bar. I must allow, therefore, that amendments Nos. 2 and 3 have that merit in that they are absolute bars.
In the opinion of the Government, even a two-year absolute bar is too long. If we are changing from a three-year conditional bar to an absolute bar, it is self-evident that the absolute bar must be shorter than three years. The reason is that we must cater for the kind of case recalled by Lord Denning, to which I have referred, of the almost instant breakdown with no blame on the part of the deserted spouse.
It is not to be assumed that such a person will never wish to marry again. Why should it? Every one of the benefits of marriage was withheld from her first marriage, which died almost before it began. She never tasted marriage at all. No doubt that wife will not wish to remarry at once. To postpone, until a year has elapsed, her first step on the road to remarriage might cause inconvenience but surely not hardship.
I disagree with my hon. Friend the Member for Ynys Môn that there would be hardship. The hon. Member for Torfaen dealt with that, as did my hon. Friend the Member for Milton Keynes (Mr. Benyon), who made an impressive speech in favour of clause 1, as drafted, having thought differently to begin with. My right hon. and learned Friend.the Member for Southport said much the same.
To postpone for two years the right to start down the road to remarriage is very different indeed, and I agree with my hon. Friend the Member for Orpington that that would be hardship. Why should a woman whose marriage crashed in those hideously distressing circumstances, almost at once, be made to wait for so long before she can even start to rid herself of that marriage's legal shell, and then perhaps a further six months before she is able to marry again?
I regret that the hon. Member for Southwark and Bermondsey (Mr. Hughes), having made a speech, is not in his place. He spoke of marriage being an ordained state, and with that I agree, as do many of my hon. Friends. What is the most poignantly described of the purposes for which we are told incomparably in the Prayer Book that marriage is ordained? It is the mutual society, help and comfort that the one should have of the other, both in prosperity and adversity. That is just as true of marriage in a registry office as it is of marriage in a church.
Why should that woman be denied those precious benefits for so long by a state which permits divorce and recognises as lawful a second marriage? Is it argued that in her adversity she has no need of comfort and merits no help? Suppose she does not want to live with a man to whom she is not married. It has been suggested to me by a distinguished churchman that it is perfectly all right for her to live with him so long as they do not get married.


Suppose she does not want to live with that man, however fond of him she may be. Suppose she does not want to bear his child. I hope that such an attitude is not so old-fashioned that the modern Church cannot applaud it.
It has been said that we are against illegitimacy. My hon. Friend the Member for Batley and Spen (Mrs. Peacock) rightly deplored the increase in illegitimacy. I ask her to reflect, with respect, whether by making someone wait two or three years before they can even start on the road to remarriage that will encourage or discourage illegitimacy.
I shall remind the House of how it is argued. The written evidence on behalf of the Board for Social Responsibility may be consulted. It states:
In any case it needs to be asked"—
which I find is Church language for a statement that the opposite is the truth—

It being Ten o'clock, the debate stood adjourned.

Ordered,
That at this day's sitting the Matrimonial and Family Proceedings Bill [Lords] may be proceeded with, though opposed, until any hour.—[Mr. Hunt.]

Question again proposed, That the clause be read a Second time.

The Solicitor-General: To continue:
In any case it needs to be asked whether it is in the best interests of those who made such a disastrous choice of partner in their first marriage that it crashed within a few months of its commencement to be given freedom to contract another union almost immediately, rather than after two or three years.—[Official Report, Special Standing Committee, 20 March 1984; c. 38.]
I heard the Bishop of Birmingham say the same thing on television at lunch-time today.
That is an approach that I find—the House may agree with me or not—highly unjust and unattractively presumptuous. It is one that is incompatible with the basis of our civil law of divorce, which is founded on the irretrievable breakdown of marriage. It is the penalty to which the Law Commission referred and to which my hon. Friends the Members for Ynys Môn and for Stockport referred. [Interruption.] Not Southport, Stockport. I know the difference between the two because I went to one of them on Friday. I went to the other at the general election. [Interruption.] I ask hon. Members not to press me.
If there is to be an absolute time bar, my advice to the House agrees with that of the Law Commission — that unacceptable hardship may well result if it is longer than one year.
Of course, I must face the fact—and I have not left it to the last because I wanted to get away from it—that there remains an assertion that this will send forth a damaging signal to the country, and that it will be misunderstood. I do not believe it. For the first time, we shall be imposing a time bar with no exceptions in place of a discretionary bar which is lifted virtually whenever an applicant asks for it without any close investigation. As has been made clear, it happens in 95 cases out of every 100. For the first time we shall be making the real quickie divorce impossible. This is a sterner, not a weaker, rule.
I venture to suggest that if there are people who misunderstand this, if it is explained to them, as has been said, they are not in any event likely to reshape their own attitude to marriage accordingly. I suspect that they will continue to be formed by numerous other influences and be quite unmoved by anything that we do.
I advise the House, therefore, to vote for clause 1 as it stands. This has been a tricky debate to which to reply and to do justice, and I cannot claim to have done that.
To abolish all time restrictions might well be unsafe, and that is new clause 3. To retain the present law—amendment No. 1—would be harmful and intolerable. It would retain the quickie divorce available on demand. I hope that my hon. Friends will reflect upon that.
An absolute time bar is, on balance, preferable; yet two years would frequently cause gratuitous hardship to innocent people, and three years would be worse. With the Law Commission, we believe that the right compromise lies in the one year absolute, which will cause no hardship and yet will serve as a valuable symbol.
I commend with the greatest respect the speeches of my right hon. and learned Friend the Member for Southport, my hon. Friend the Member for Milton Keynes and my hon. and learned Friends the Members for Fylde and for Burton.
I hope that I am no less ardent than any of my hon. Friends in support of the family, marriage, or the reputation of the Government or the party. I do not believe that by closing the door on the real quickie divorce we cart be accused of cheapening marriage. If, by new clause 3, we insisted on retaining it, we would seem odd indeed. If we carried amendments Nos. 2 or 3, we would seem to be harsh and insisting on law that is out of touch with reality. Amendments Nos. 2 and 3 seek absolute bars for two or three years respectively to be considered as an alternative to the absolute bar of clause 1. For the reasons that I have given, each of those would give rise to gratuitous hardship to innocent people, and probably to greater illegitimacy. That cannot be justified. That is why I invite the House to reject both amendments and to support the clause as it stands.

Mr. Best: When my hon. and learned Friend the Solicitor-General practised at the Bar, he may have come up against the chilling experience which sometimes confronts me. When I have presented a case to a judge and he starts with the words: "Mr. Best, you have said all that could have been said on behalf of your client. You have put it in the most persuasive way, but I have to say to you … ", I know that I have lost.
My hon. and learned Friend said all that could be said on behalf of the Government in support of clause 1, and said it in a most persuasive way. Nevertheless, some hon. Members, including myself, will not have been persuaded by his comments. I hope that he will understand me when I say that his argument about the difference between Stockport and Southport was as persuasive as his argument about the difference between a one-year absolute bar and no bar.
I thank my hon. and learned Friend for much of what he said, because it appeared to support new clause 3. He said that there was much to be said for new clause 3, and I am grateful to him for that. There was not even a poisonous sting in the tail, as I expected. He deployed persuasive arguments in favour of new clause 3. The gravamen of the argument against new clause 3 is whether the abolition of a bar, such as the present discretionary bar, and the failure to substitute for it an absolute bar of one year, as is proposed in the Bill, might send a false signal. That is a matter of speculation. Against that, one can be certain that hardship cases will be caused if there is a bar


on the presentation of a petition, whatever the length of the period. Examples of that have been put forward by hon. Members, including the Solicitor-General.
I accept that that may occur in only a few cases if there is a one-year absolute bar but, as my hon. and learned Friend said, we must consider people as individuals. If individuals will suffer hardship, as they will do if the clause is made law, that is a reason to scrutinise the clause even more carefully and to vote against it.
The Solicitor-General said that clause 1 might cause inconvenience, as of course it will. But why should it cause inconvenience and hardship when we can ensure that they do not occur? He argued against the two-years bar. Would he have argued so persuasively against a 18-months for 13-months bar? I wondered at what point he would change from his vehement opposition to the two-years absolute bar to his support for the Government's one-year absolute bar. There is no logical point at which that could occur.
I listened with great care to my hon. and learned Friend the Member for Fylde (Sir E. Gardner), who put his finger on the point. He said that it was against logic and his instinct not to support new clause 3, and that his argument was as much psychological as it was logical. I respect deeply what he said, because it obviously came from the heart. I ask the House to vote logically, not on the basis of a perception that, on the evidence, does not exist in the general public. Far from being a signal that marriage has been cheapened, if we pass new clause 3 it will be a signal that we believe that marriage is for life but that, in circumstances where it has irretrievably broken down through the misfortunes that can occur, those people should be helped at whatever time the breakdown occurs.
That is the message that should go from the House tonight, and I hope that hon. Members will support me in sending it.

Question put, That the clause be read a Second time:—

The House divided: Ayes 45, Noes 162.

Division No. 364]
[10.10 pm


AYES


Atkinson, N. (Tottenham)
Madden, Max


Batiste, Spencer
Meadowcroft, Michael


Bermingham, Gerald
Mikardo, Ian


Blair, Anthony
Morris, Rt Hon J. (Aberavon)


Callaghan, Jim (Heyw'd &amp; M)
Nellist, David


Chope, Christopher
Nelson, Anthony


Corbyn, Jeremy
Norris, Steven


Cowans, Harry
Ottaway, Richard


Davis, Terry (B'ham, H'ge H'l)
Parris, Matthew


Dicks, Terry
Pike, Peter


Dunwoody, Hon Mrs G.
Raffan, Keith


Favell, Anthony
Richardson, Ms Jo


Forsyth, Michael (Stirling)
Rowe, Andrew


Harman, Ms Harriet
Skinner, Dennis


Haynes, Frank
Smith, C.(Isl'ton S &amp; F'bury)


Hayward, Robert
Spencer, Derek


Home Robertson, John
Thurnham, Peter


Hooson, Tom
Tinn, James


Howarth, Alan (Stratf'd-on-A)
Twinn, Dr Ian


Jones, Robert (W Herts)
Wood, Timothy


Kirkwood, Archy



Knowles, Michael
Tellers for the Ayes:


Lawler, Geoffrey
Mr. Keith Best and Mr. Alex Carlile.


MacKay, Andrew (Berkshire)



McWilliam, John






NOES


Abse, Leo
Hunt, David (Wirral)


Alexander, Richard
Hunter, Andrew


Alison, Rt Hon Michael
Hurd, Rt Hon Douglas


Amess, David
Jessel, Toby


Ashby, David
Johnson-Smith, Sir Geoffrey


Atkinson, David (B'm'th E)
Jones, Gwilym (Cardiff N)


Baker, Rt Hon K. (Mole Vall'y)
Joseph, Rt Hon Sir Keith


Baker, Nicholas (N Dorset)
Key, Robert


Baldry, Anthony
King, Roger (B'ham N'field)


Bellingham, Henry
Knight, Gregory (Derby N)


Benyon, William
Lawrence, Ivan


Berry, Sir Anthony
Leigh, Edward (Gainsbor'gh)


Bevan, David Gilroy
Lilley, Peter


Biggs-Davison, Sir John
Lloyd, Peter, (Fareham)


Boscawen, Hon Robert
Lyell, Nicholas


Bowden, Gerald (Dulwich)
Maclean, David John


Braine, Sir Bernard
Major, John


Brandon-Bravo, Martin
Malins, Humfrey


Bright, Graham
Mather, Carol


Brinton, Tim
Mayhew, Sir Patrick


Brooke, Hon Peter
Mills, Sir Peter (West Devon)


Bruinvels, Peter
Morris, M. (N'hampton, S)


Burt, Alistair
Morrison, Hon C. (Devizes)


Campbell-Savours, Dale
Morrison, Hon P. (Chester)


Carlisle, John (N Luton)
Moynihan, Hon C.


Carlisle, Kenneth (Lincoln)
Murphy, Christopher


Chapman, Sydney
Newton, Tony


Clark, Hon A. (Plym'th S'n)
Nicholls, Patrick


Clark, Dr Michael (Rochford)
Oakes, Rt Hon Gordon


Clark, Sir W. (Croydon S)
Onslow, Cranley


Conway, Derek
Page, Richard (Herts SW)


Coombs, Simon
Pawsey, James


Cope, John
Peacock, Mrs Elizabeth


Cranborne, Viscount
Percival, Rt Hon Sir Ian


Currie, Mrs Edwina
Powley, John


Deakins, Eric
Raison, Rt Hon Timothy


Dorrell, Stephen
Rhodes James, Robert


Douglas-Hamilton, Lord J.
Ridley, Rt Hon Nicholas


Dover, Den
Ridsdale, Sir Julian


Dunn, Robert
Robinson, Mark (N'port W)


Durant, Tony
Rossi, Sir Hugh


Dykes, Hugh
Sackville, Hon Thomas


Evennett, David
Sainsbury, Hon Timothy


Eyre, Sir Reginald
Sayeed, Jonathan


Fallon, Michael
Shaw, Sir Michael (Scarb')


Farr, John
Shelton, William (Streatham)


Fenner, Mrs Peggy
Shersby, Michael


Finsberg, Sir Geoffrey
Silvester, Fred


Forman, Nigel
Sims, Roger


Forrester, John
Skeet, T. H. H.


Fox, Marcus
Smith, Tim (Beaconsfield)


Franks, Cecil
Spicer, Michael (S Worcs)


Fraser, J. (Norwood)
Stanbrook, Ivor


Freeman, Roger
Stern, Michael


Fry, Peter
Stevens, Lewis (Nuneaton)


Gale, Roger
Stewart, Allan (Eastwood)


Galley, Roy
Stewart, Andrew (Sherwood)


Gardiner, George (Reigate)
Sumberg, David


Gardner, Sir Edward (Fylde)
Taylor, John (Solihull)


Garel-Jones, Tristan
Temple-Morris, Peter


Goodhart, Sir Philip
Thatcher, Rt Hon Mrs M.


Goodlad, Alastair
Thomas, Rt Hon Peter


Gow, Ian
Thompson, Donald (Calder V)


Gower, Sir Raymond
Thompson, Patrick (N'ich N)


Greenway, Harry
Thome, Neil (Ilford S)


Hamilton, Hon A. (Epsom)
Tracey, Richard


Hamilton, Neil (Tatton)
van Straubenzee, Sir W.


Hargreaves, Kenneth
Viggers, Peter


Harris, David
Waddington, David


Haselhurst, Alan
Wakeham, Rt Hon John


Havers, Rt Hon Sir Michael
Walden, George


Hawksley, Warren
Waller, Gary


Higgins, Rt Hon Terence L.
Wardle, C. (Bexhill)


Hind, Kenneth
Watson, John


Hogg, Hon Douglas (Gr'th'm)
Watts, John


Holt, Richard
Weetch, Ken


Howard, Michael
Wells, Bowen (Hertford)


Hubbard-Miles, Peter
Whitfield, John


Hughes, Simon (Southwark)
Whitney, Raymond






Winterton, Mrs Ann



Winterton, Nicholas
Tellers for the Noes:


Yeo, Tim
Mr. Ian Lang and Mr. Michael Neubert.


Young, Sir George (Acton)

Question accordingly negatived.

Clause 1

BAR ON PETITIONS FOR DIVORCE WITHIN ONE YEAR OF MARRIAGE

Amendment proposed: No. 1, in page 2, line 8, leave out clause 1.—[Mr. Abse]

Question put, That the amendment be made:—

The House divided: Ayes 69, Noes 147.

Division No. 365]
[10.22 pm


AYES


Abse, Leo
Jessel, Toby


Amess, David
Johnson-Smith, Sir Geoffrey


Ashby, David
Jones, Robert (W Herts)


Atkinson, David (B'm'th E)
King, Roger (B'ham N'field)


Baker, Nicholas (N Dorset)
Knight, Mrs Jill (Edgbaston)


Bellingham, Henry
Lilley, Peter


Bevan, David Gilroy
McDonald, Dr Oonagh


Biggs-Davison, Sir John
Mills, Sir Peter (West Devon)


Bowden, Gerald (Dulwich)
Morris, M. (N'hampton, S)


Braine, Sir Bernard
Morrison, Hon C. (Devizes)


Bright, Graham
Oakes, Rt Hon Gordon


Bruinvels, Peter
Page, Richard (Herts SW)


Campbell-Savours, Dale
Peacock, Mrs Elizabeth


Chope, Christopher
Powley, John


Clark, Sir W. (Croydon S)
Rossi, Sir Hugh


Cranborne, Viscount
Sackville, Hon Thomas


Currie, Mrs Edwina
Shelton, William (Streatham)


Dicks, Terry
Silvester, Fred


Dorrell, Stephen
Skeet, T. H. H.


Evennett, David
Stanbrook, Ivor


Fallon, Michael
Stevens, Lewis (Nuneaton)


Farr, John
Taylor, John (Solihull)


Finsberg, Sir Geoffrey
van Straubenzee, Sir W.


Forman, Nigel
Walden, George


Forsyth, Michael (Stirling)
Wardell, Gareth (Gower)


Franks, Cecil
Wardle, C. (Bexhill)


Gale, Roger
Watson, John


Galley, Roy
Whitfield, John


Gardiner, George (Reigate)
Winterton, Mrs Ann


Hamilton, Neil (Tatton)
Winterton, Nicholas


Hargreaves, Kenneth
Wood, Timothy


Haselhurst, Alan
Yeo, Tim


Hawksley, Warren



Higgins, Rt Hon Terence L.
Tellers for the Ayes:


Hind, Kenneth
Mr. Christopher Murphy and Mr. J. F. Pawsey.


Howarth, Gerald (Cannock)



Hughes, Simon (Southwark)





NOES


Alexander, Richard
Carlisle, John (N Luton)


Alison, Rt Hon Michael
Carlisle, Kenneth (Lincoln)


Atkinson, N. (Tottenham)
Chapman, Sydney


Baker, Rt Hon K. (Mole Vall'y)
Clark, Hon A. (Plym'th S'n)


Baldry, Anthony
Clark, Dr Michael (Rochford)


Banks, Tony (Newham NW)
Conway, Derek


Batiste, Spencer
Coombs, Simon


Benyon, William
Cope, John


Bermingham, Gerald
Corbyn, Jeremy


Berry, Sir Anthony
Cowans, Harry


Best, Keith
Davis, Terry (B'ham, H'ge H'l)


Blair, Anthony
Deakins, Eric


Boscawen, Hon Robert
Douglas-Hamilton, Lord J.


Brandon-Bravo, Martin
Dover, Den


Brinton, Tim
Dunn, Robert


Brooke, Hon Peter
Dunwoody, Hon Mrs G.


Burl, Alistair
Durant, Tony


Callaghan, Jim (Heyw'd &amp; M)
Dykes, Hugh


Carlile, Alexander (Montg'y)
Eyre, Sir Reginald





Favell, Anthony
Moynihan, Hon C.


Fenner, Mrs Peggy
Nellist, David


Forrester, John
Nelson, Anthony


Fraser, J. (Norwood)
Neubert, Michael


Fraser, Peter (Angus East)
Newton, Tony


Freeman, Roger
Nicholls, Patrick


Fry, Peter
Norris, Steven


Gardner, Sir Edward (Fylde)
Onslow, Cranley


Goodhart, Sir Philip
Ottaway, Richard


Goodlad, Alastair
Parris, Matthew


Gow, Ian
Percival, Rt Hon Sir Ian


Gower, Sir Raymond
Pike, Peter


Greenway, Harry
Raffan, Keith


Ground, Patrick
Raison, Rt Hon Timothy


Hamilton, Hon A. (Epsom)
Rhodes James, Robert


Harman, Ms Harriet
Rhys Williams, Sir Brandon


Harris, David
Richardson, Ms Jo


Harrison, Rt Hon Walter
Ridley, Rt Hon Nicholas


Havers, Rt Hon Sir Michael
Ridsdale, Sir Julian


Haynes, Frank
Robinson, Mark (N'port W)


Hayward, Robert
Rowe, Andrew


Heathcoat-Amory, David
Sayeed, Jonathan


Hogg, Hon Douglas (Gr'th'm)
Shaw, Sir Michael (Scarb')


Hogg, N. (C'nauld &amp; Kilsyth)
Shersby, Michael


Holt, Richard
Sims, Roger


Home Robertson, John
Skinner, Dennis


Hooson, Tom
Smith, C.(Isl'ton S &amp; F'bury)


Howard, Michael
Smith, Tim (Beaconsfield)


Howarth, Alan (Stratf'd-on-A)
Spencer, Derek


Hubbard-Miles, Peter
Spicer, Michael (S Worcs)


Hunter, Andrew
Steen, Anthony


Hurd, Rt Hon Douglas
Stern, Michael


Jones, Gwilym (Cardiff N)
Stewart, Allan (Eastwood)


Joseph, Rt Hon Sir Keith
Stewart, Andrew (Sherwood)


Key, Robert
Sumberg, David


Kirkwood, Archy
Temple-Morris, Peter


Knight, Gregory (Derby N)
Thatcher, Rt Hon Mrs M.


Knowles, Michael
Thomas, Rt Hon Peter


Lang, Ian
Thompson, Donald (Calder V)


Lawler, Geoffrey
Thompson, Patrick (N'ich N)


Lawrence, Ivan
Thorne, Neil (Ilford S)


Leigh, Edward (Gainsbor'gh)
Thurnham, Peter


Lloyd, Peter, (Fareham)
Tracey, Richard


Lyell, Nicholas
Twinn, Dr Ian


MacKay, Andrew (Berkshire)
Viggers, Peter


Maclean, David John
Waddington, David


McWilliam, John
Wakeham, Rt Hon John


Madden, Max
Waller, Gary


Major, John
Watts, John


Malins, Humfrey
Weetch, Ken


Mather, Carol
Whitney, Raymond


Mayhew, Sir Patrick
Young, Sir George (Acton)


Meadowcroft, Michael



Meyer, Sir Anthony
Tellers for the Noes:


Mikardo, Ian
Mr. David Hunt and Mr. Tristan Garel-Jones.


Morris, Rt Hon J. (Aberavon)



Morrison, Hon P. (Chester)

Question accordingly negatived

Amendment proposed: No. 2, in page 2, line 15 leave out 'one year' and insert 'two years'.—[Mr. Sims.]

Question put, That the amendment be made:—

The House divided: Ayes 51, Noes 154.

Division No. 366]
[10.33 pm


AYES


Amess, David
Evennett, David


Ashby, David
Fallon, Michael


Atkinson, David (B'm'th E)
Finsberg, Sir Geoffrey


Bevan, David Gilroy
Freeman, Roger


Biggs-Davison, Sir John
Gale, Roger


Bowden, Gerald (Dulwich)
Galley, Roy


Bright, Graham
Gardiner, George (Reigate)


Bruinvels, Peter
Gow, Ian


Campbell-Savours, Dale
Ground, Patrick


Cash, William
Hamilton, Hon A. (Epsom)


Clark, Sir W. (Croydon S)
Hamilton, Neil (Tatton)


Currie, Mrs Edwina
Hargreaves, Kenneth






Harris, David
Sims, Roger


Hind, Kenneth
Skeet, T. H. H.


Howarth, Gerald (Cannock)
Stevens, Lewis (Nuneaton)


Hughes, Simon (Southwark)
Walden, George


Hunter, Andrew
Wardle, C. (Bexhill)


Jessel, Toby
Watts, John


King, Roger (B'ham N'field)
Whitfield, John


Knight, Mrs Jill (Edgbaston)
Winterton, Mrs Ann


Leigh, Edward (Gainsbor'gh)
Winterton, Nicholas


Murphy, Christopher
Wood, Timothy


Oakes, Rt Hon Gordon
Yeo, Tim


Peacock, Mrs Elizabeth



Rhys Williams, Sir Brandon
Tellers for the Ayes:


Rossi, Sir Hugh
Mr. Harry Greenway and Mr. Alistair Burt.


Sainsbury, Hon Timothy



Silvester, Fred





NOES


Alexander, Richard
Deakins, Eric


Alison, Rt Hon Michael
Dicks, Terry


Baker, Rt Hon K. (Mole Vall'y)
Douglas-Hamilton, Lord J.


Baker, Nicholas (N Dorset)
Dover, Den


Baldry, Anthony
Dunn, Robert


Banks, Tony (Newham NW)
Dunwoody, Hon Mrs G.


Batiste, Spencer
Durant, Tony


Bellingham, Henry
Dykes, Hugh


Benyon, William
Eyre, Sir Reginald


Bermingham, Gerald
Farr, John


Berry, Sir Anthony
Favell, Anthony


Best, Keith
Fenner, Mrs Peggy


Blair, Anthony
Forrester, John


Boscawen, Hon Robert
Forsyth, Michael (Stirling)


Brandon-Bravo, Martin
Franks, Cecil


Brinton, Tim
Fraser, J. (Norwood)


Brooke, Hon Peter
Fraser, Peter (Angus East)


Callaghan, Jim (Heyw'd &amp; M)
Fry, Peter


Carlile, Alexander (Montg'y)
Gardner, Sir Edward (Fylde)


Carlisle, John (N Luton)
Garel-Jones, Tristan


Carlisle, Kenneth (Lincoln)
Goodhart, Sir Philip


Channon, Rt Hon Paul
Goodlad, Alastair


Chapman, Sydney
Harman, Ms Harriet


Chope, Christopher
Harrison, Rt Hon Walter


Clark, Hon A. (Plym'th S'n)
Havers, Rt Hon Sir Michael


Clark, Dr Michael (Rochford)
Hawksley, Warren


Conway, Derek
Haynes, Frank


Coombs, Simon
Hayward, Robert


Cope, John
Heathcoat-Amory, David


Corbyn, Jeremy
Hogg, N. (C'nauld &amp; Kilsyth)


Cowans, Harry
Holt, Richard


Davis, Terry (B'ham, H'ge H'l)
Home Robertson, John





Hooson, Tom
Raison, Rt Hon Timothy


Howard, Michael
Rhodes James, Robert


Howarth, Alan (Stratf'd-on-A)
Richardson, Ms Jo


Hubbard-Miles, Peter
Ridley, Rt Hon Nicholas


Hunt, David (Wirral)
Ridsdale, Sir Julian


Hurd, Rt Hon Douglas
Robinson, Mark (N'port W)


Johnson-Smith, Sir Geoffrey
Rowe, Andrew


Jones, Gwilym (Cardiff N)
Sayeed, Jonathan


Jones, Robert (W Herts)
Shaw, Sir Michael (Scarb')


Joseph, Rt Hon Sir Keith
Shelton, William (Streatham)


Key, Robert
Shersby, Michael


Kirkwood, Archy
Skinner, Dennis


Knight, Gregory (Derby N)
Smith, C.(Isl'ton S &amp; F'bury)


Knowles, Michael
Smith, Tim (Beaconsfield)


Lawler, Geoffrey
Spencer, Derek


Lawrence, Ivan
Spicer, Michael (S Worcs)


Lloyd, Peter, (Fareham)
Stanbrook, Ivor


Lyell, Nicholas
Steen, Anthony


McDonald, Dr Oonagh
Stern, Michael


MacKay, Andrew (Berkshire)
Stevens, Martin (Fulham)


Maclean, David John
Stewart, Allan (Eastwood)


Madden, Max
Stewart, Andrew (Sherwood)


Major, John
Sumberg, David


Malins, Humfrey
Taylor, John (Solihull)


Mather, Carol
Temple-Morris, Peter


Mayhew, Sir Patrick
Thatcher, Rt Hon Mrs M.


Meadowcroft, Michael
Thomas, Rt Hon Peter


Meyer, Sir Anthony
Thompson, Donald (Calder V)


Mikardo, Ian
Thompson, Patrick (N'ich N)


Mills, Sir Peter (West Devon)
Thorne, Neil (Ilford S)


Morris, Rt Hon J. (Aberavon)
Thurnham, Peter


Morrison, Hon C. (Devizes)
Tracey, Richard


Morrison, Hon P. (Chester)
Twinn, Dr Ian


Moynihan, Hon C.
van Straubenzee, Sir W.


Nellist, David
Viggers, Peter


Nelson, Anthony
Waddington, David


Neubert, Michael
Wakeham, Rt Hon John


Newton, Tony
Waller, Gary


Nicholls, Patrick
Warden, Gareth (Gower)


Norris, Steven
Watson, John


Onslow, Cranley
Weetch, Ken


Ottaway, Richard
Whitney, Raymond


Parris, Matthew
Young, Sir George (Acton)


Percival, Rt Hon Sir Ian



Pike, Peter
Tellers for the Noes:


Powley, John
Mr. Ian Lang and Mr. Douglas Hogg


Raffan, Keith

Question accordingly negatived.

Clause 3

ORDERS FOR FINANCIAL RELIEF AFTER DIVORCE ETC.

Ms. Jo Richardson: I beg to move amendment No. 4, in page 3, leave out lines 20 to 26 and insert—
'It shall be the duty of the Court in deciding whether to exercise its powers under section 23, 24 or 24A above, and if so in what manner, to make an order or orders, which, first consideration being given to the welfare of the children, fairly distributes the assets of the marriage including any pension and insurance rights on the basis that marriage is a common endeavour'.
We have spent more than five hours discussing part I, which I accept is an important part of the legislation. I am, however, worried that part II, which is about picking up the pieces after the divorce, will not merit as much attention as has been given to part I. Part II is extremely important. In Committee the debate on part II occupied more time than the debate on part I, and I hope that we shall have the attention of the House when discussing it.
The amendment is concerned with a fairer distribution of the assets of the marriage. It seeks to set an objective which the Bill as drafted completely lacks. The measure is a chance to make a statement of social policy and have a shared understanding of the approach that the courts should take. It is not an attempt at quantification but a general statement of policy. A law without an objective is bad. No directions leave the courts open to create their own law. I believe that without the amendment the Bill would have no direction, and that would be an abdication of parliamentary responsibility.
Many people will say that the Bill's objective is to put children first, but I remind the House that consideration of children is relevant in only 60 per cent. of divorce cases. Even in that number, spouses and spousal property should still be considered.
The Bill is not only about maintenance—though, as I have said many times, maintenance is an important part of the Bill—but about the chattels of the marriage and how they are divided. The Bill is about things in the kitchen, the house, the furniture, and so on. It is concerned with what is done about the insurance policy and eventually about the house.
Since 1882 married women have been able to own their own property, but we must remember in 1984 that many married women still are not in a position to accumulate assets in the same way as their husbands can. That is because of the general position in which married women find themselves, because of their home responsibilities. That is especially true of women who have decided to put their children first and to remain at home rather than pursue any type of work or career, and who therefore have not earned much money.
England and Wales, unlike European countries, do not provide for community of property in marriage. Unless the partners pool their earnings and buy everything jointly, which some do, the law operates the basic rule that one owns what one has bought. The fact of marriage makes no difference to property ownership.
The amendment's objective is to remind us all and the courts that, although we do not have the community of property system that operates in Europe, we recognise that

marriage is a common endeavour to which both parties have contributed in several and differing ways. The amendment tries to underline the fact that marriage should be seen in that light.
Much of the debate on part II has centred on dependency, because of the way in which the Bill is drawn up, and too little on the collective enterprise of marriage. We should not miss this chance—I shall repeat this point—of stating clearly for the guidance of the courts what we regard as the objective in the division of property on divorce.
Women all over the country who are married and who stay married would like recognition of their contribution to the marriage, even though they may never be involved in divorce. It gives them a status which not all of there have at present. If they become divorced, it is important that the fact that there was a common endeavour should be clearly recognised. Many who have been divorced feel that the concentration in the Bill on the alleged abuse cf maintenance undermines the endeavour that they have made. It is not too late to show that we take the matter seriously and to recognise that the Bill is not and should not be simply about maintenance, but should be about all financial orders on divorce. Hon. Members should not be irresponsible and let the Bill go forward without a statement of that policy.
Let me point to some of the words which we have used in amendment No. 4, which we hope will produce a sympathetic response from the Solicitor-General. I am not saying that we did not receive any sympathy in Committee, but we did not get the response that we wanted. We talk about "assets of the marriage". It is important to recognise that assets are acquired through, and not for, marriage. The courts have already had to deal with the problem. The amendment does not include any definition of assets, but it recognises their existence. It would be impossible for us to list assets.
We talk about fairly distributing the assets of the marriage. Again it is impossible to be more specific and in a general policy objective that should not be necessary anyway. "Fairly distributes" is a term used by the Scottish Law Commission in its draft Bill. Fairness in individual cases would depend on the court's application of the guidelines. It does not fetter discretion, but it does give a policy guide.
The use of the term "distributes" recognises that it is not a question of awarding one party against another, but of sharing out what has been acquired through joint effort. That is what we have to keep in the forefront of our minds. "Common endeavour" is a phrase which has been chosen with the greatest of care. Surely modern marriages should be viewed as a common endeavour. Any family policy should take that as a starting point. The law should be no exception and can take the lead.
We have also included a reference to pension and insurance rights in the amendment. In Committee we debated occupational pensions and insurance rights, and the Opposition were defeated. I remind the House that in the debate in the other place the Lord Chancellor was not without some sympathy for the point that was made about the contribution that was made by the first wife to the pension contributions of her husband. I say again what I said in Committee and what others have said — first wives never become widows and there are penalties attached to that because many are older wives rather than younger wives who have made a real contribution to the


marriage. We all believe that any benefit which comes from common endeavour in financial terms should be fairly shared out between the two. That is what we seek to do. It would be grossly unfair and improper not to do so.

Mr. Martin Stevens: We are all trying to achieve greater fairness. Indeed, that is the purpose of the Bill. Would not the Bill enable the court, if it thought it right, to assess and divide insurance and pension rights? I genuinely do not know whether the Bill precludes that.

Ms. Richardson: As I understand it, the Bill in its present form precludes such a division. It may well be that a court would take that into account. There are many regrettably vague words in the Bill which do not give sufficiently clear guidelines to the courts.
When we argued in Committee about pension and insurance rights, the position as I understood it—the Solicitor-General may correct me—was that pension and insurance rights were not secure in terms of being properly shared out. That is why we should like to see something more in the Bill.
I believe that the House would seriously abrogate its responsibilities if it allowed the Bill to go forward without the policy objective that we are trying to set down. It makes a statement about marriage. We have heard much this evening about marriage and the sanctity of marriage. We should like to carry forward what has been said by stating that we see marriage as a common endeavour. If it breaks down irretrievably, that common endeavour should be recognised.
We are supporting a modern vision of a partnership. It is seen today as two people working together. To leave the Bill as it stands would bring more discord and dissatisfaction. Goodness knows, the Bill has caused enough discord, dissatisfaction and misunderstanding. To inject a positive statement like this would mean that the House had made an important contribution to the development of family law. I hope, therefore, that the House will support our amendment.

Mr. Blair: At this late hour it may be too much to expect as good an attendance for this amendment as for the earlier part of the debate, but it is no less a shame for that. The amendment is every bit as important as, and perhaps much more important to the institution of marriage and how we regard it than, the discussion about time bars.
The Bill omits to provide any definition and guiding principle for marriage. The statute that the Bill will largely replace provided such guidelines. The lack of guidance is a great misfortune, for the following reason. The 1973 Act has as its guiding principle in considering financial relief after divorce that one should attempt to put the parties in the position where they would have been had the marriage not broken down. That is regarded as unsatisfactory, for very good reasons. I do not dissent from removing that principle, but it is unfortunate that it is not being replaced, as it is important that the court has an overall guiding principle in mind when it assesses the matters set out in new clause 25.
What better guiding principle could the court have than common endeavour? We have heard much this evening about the institution of marriage. This is not a party political point, but Conservative Members always say that

they regard the institution of marriage as important to our way of life, but I ask them to bear in mind the fact that, as the Bill stands, if guiding principles are enshrined in the Bill, they are in the exhortation to the court to permit a clean break in circumstances that it would not allow at present.
I ask them to consider whether it is not odd that a Bill proclaimed as one to strengthen the institution of marriage has at its heart the possibility of an easier clean break, namely the loosening of the ties of marriage. Conservative Members should think on that when they consider the Bill as a whole.
The principle that is put across most strongly in the Bill is that a clean break should be made easier. That principle shuffles off the lifelong responsibilities of marriage, and brings a change in the nature of the marriage contract by permitting an easier clean break, even where the parties may not consent. I shall not go into that at length, as it is not the principle that we are discussing, but it is strange for Conservative Members to say that while they support the institution of marriage they are allowing greater access to a clean break, which has at its heart the dividing of the ties between men and women after marriage.
11 pm
The guiding principle should be that marriage is a common endeavour. It is a positive principle, and exactly enshrines the values in marriage that we would like. It is necessary to have that as a principle because many people, particularly women, feel that the woman is at a disadvantage in the marriage institution and that many of the abilities and advantages that a woman brings to that institution are not easily translated into definable financial terms. Therefore, it is better, if we can, to try to set out for the courts the principle that marriage should be viewed as a common endeavour, in a broader sense, as opposed simply to the pounds, shillings and pence, the pay packet or the tangible assets of marriage.
It could be said in one sense that clause 3 already pays attention to some of those matters. New section 25 states that one of the matters to be taken into account is the
contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family".
Therefore, to that extent the notion that I am suggesting is already in the Bill, but I should like the emphasis to be changed. The notion of contributions other than purely financial ones should be translated into a much more prominent position so that it is not merely one of many matters that is taken into account, but a guiding or ruling principle in the Bill.
I hope that I have made the point clearly and concisely enough. I hope that even at this late stage the Government will see that it is important that we replace the guiding principle that we are removing in the 1973 Act with a different guiding principle, and what better guiding principle to have than that marriage is a common endeavour between the man and woman? If the court were looking to that when it assessed the implications of financial relief after divorce, it would be able to come to a much fairer and more balanced view of marriage and its responsibilities.

Mr. Martin Stevens: I am glad to have the opportunity, for the first time in the House, of commenting on the Bill. Although I am married, I was its parent a year ago, and I was pleased when, in the Gracious Speech, we


learnt that the Government would take over what had been a private Member's Bill, give it time to be considered, and, we hope, pass it into law.
The hon. Member for Sedgefield (Mr. Blair) told us that the overriding principle of the Bill is to strengthen the institution of marriage. He emphasised the nature of marriage as a common endeavour. He may be right. I do not know. However, the purpose of the Bill is far more modest than he suggests. It is to eliminate four or five of the ferocious injustices that 10 years' experience of the 1973 Act had shown to be enshrined within it. The Law Commission and the Law Society debated with judges and other lawyers whether it might be best to offer no guidelines and to eliminate section 25 altogether. However, the general view of the bench was that that would mean taking flexibility to its ultimate limits and make the law impossible to administer with the evident fairness and justice that we all agree is required. Thus, guidelines there should be and guidelines there are.
The aim of the Bill in its five clarifying parts is to bring the judgment of the court closer to the facts—closer to fairness and natural justice. Therefore, it seems odd to advance to the House the proposition that marriage should be regarded as a common endeavour. No doubt that is what it should be and in many cases it is, but I see no reason for asking a court to accept that a particular marriage has been a common endeavour. The court's task is to interpret the facts of the marriage which has been brought under scrutiny and to reach financial decisions which are fair.

Ms. Richardson: To whom?

Mr. Stevens: To all the parties, including the children.
To start off by saying, as a principal guideline, that every marriage should be treated by the court in a way that is patently untrue of a great number of marriages is to pile nonsense on the injustice that we are trying to correct. It would fatigue the House if I were to list a range of examples.

Ms. Richardson: Give one.

Mr. Stevens: I will. I had one in my advice bureau on Tuesday night. I have given this type of example before, because it is one of many. A young man, in his early thirties, is conducting his business from his house, which he is buying on mortgage. He is a self-employed painter and decorator.

Mr. Alex Carlile: Are there any children?

Mr. Stevens: The bedtime story will unfold, if the hon. and learned Gentleman will be attentive.
He marries a girl aged 24, who is a physiotherapist. They have one child. At 26, she runs away with another man, who is better off than the imaginary husband. Under the present law, she would be entitled to bring an ouster action against the husband, to move into the marital home with her gentleman friend and child, to decline to undertake, until the child is old enough for it to be practicable, any of her former professional activities and to require the husband, with a greatly diminished income, to provide maintenance for her and the child and to keep up the mortgage payments until the child's education is complete.

Mr. Carlile: Perhaps the hon. Gentleman will advise his imaginary constituent that the wife has no prospect of recovering a penny piece from him because she has gone to live with a man who earns a higher income, is living in

more comfortable circumstances and has an earning capacity, full-time or part-time, as a physiotherapist. The example which the hon. Gentleman has given adds nothing to the discussion of the Bill.

Mr. Stevens: It is an example that I tried not to give because I knew that hon. and learned Members would leap in to tell me that it was not true. Unfortunately, it is true. I have a dozen such cases in my constituency. The hon. and learned Gentleman is welcome to join me at my advice bureau to try to solve them.

Mr. Carlile: I shall stick to my own.

Mr. Stevens: I am sure the hon. and learned Gentleman will. Let us have some truth and less cant.

Mr. Carlile: What cant?

Mr. Stevens: What the hon. and learned Gentleman said was cant. The husband has to provide maintenance for the wife and child and has to make the mortgage payments until the child has completed its education. His income is much reduced. He may not require the wife at any stage to return to her professional activities, and he may not require the gentleman friend, assuming that the wife does not marry him, to make any contribution. To describe such a marriage as having a common endeavour is fraudulent cant. That is what we are trying to avoid. [Interruption.] Of course, I am making hon. Members scream and boil, because I am telling the truth.

Mrs. Dunwoody: The hon. Gentleman is wrong.

Mr. Stevens: I am not wrong.
The Bill seeks to enable the courts to study the facts of marriage objectively and to treat it accordingly. I should be greatly opposed to saddling the courts with a guideline that assumes a manifest untruth. That would be going too far towards introducing into court procedure the kind of political beliefs of some hon. Members. I for one hope that we shall have none of it.

The Solicitor-General: An amendment along these lines has been discussed in Committee, and it has been brought back with variations. I should have liked to be able to spend longer, perhaps, in a philosophical discussion on the nature of marriage, its objectives and the way in which it should generally be approached, but I have the more prosaic duty of advising the House whether it would he practical or appropriate to incorporate the amendment in the Bill at this stage.
I listened carefully to my hon. Friend the Member for Fulham (Mr. Stevens), who has a great deal of experience in this matter—not just in the practical and advisory sense of which he has been telling us, but in the legislative sense. He has reminded us of the Bill's forerunner for which he was responsible.
The amendment would remove the general direction to the court to have regard to all the circumstances of the case. It would substitute a number of broad criteria and statements that I am sure all Opposition Members would concede represent a novel approach to such legislation. They are not necessarily the worse for it, but they must be considered in the light of the effect that they would have on litigation and certainty.
The Law Commission's report stated:
The response to the Discussion Paper indicated a substantial consensus that what was required was a change of attitude or emphasis in the law rather than a radical restructuring involving a wholly novel statutory framework.


I understand—it has almost become a trite expression — that what the Law Commission recommended was evolutionary rather than revolutionary. Although there is much that is attractive in the thought behind the amendment, regrettably it amounts to a revolutionary restructuring of the legislation.
The legislation will not provide certainty. I understand the deep-seated anxiety of hon. Members that by removing the impossible objective and not replacing it by anything explicit, the court will be left without guidance on how to exercise its function on financial provision. My answer was that the court has an overriding duty to do what is just. It will not be helped by the assertion in the amendment that it should work on the basis that marriage is a common endeavour. That might be different if our tradition of statutory interpretation were different. If we had a tradition of much broader and more generalised statutory legislation, as is found in some continental countries, the amendment would have been more acceptable.
11.15 pm
A number of expressions will result in great uncertainty. I know that the amendment derives in part from Scottish law, but considerable differences exist between the law on financial provision on divorce as it is applied in Scotland and as it is applied in England and Wales. In Scotland, the courts do not have the statutory framework that governs the exercise of wide adjustive powers on divorce that the Courts in England and Wales have operated for many years.
Unlike our courts, the Scottish courts have not built up an important and influential body of case law. Therefore, the Scottish Law Commission had an opportunity to examine the powers of the court to make financial provision in Scotland almost completely afresh. That opportunity was denied to the English Law Commission in its review of the financial consequences of divorce. Its recommendations are designed to bring about a modest change of emphasis in the law rather than a fundamentally different approach. That is faithfully repreduced and implemented in the Bill.
The amendment seeks a new guiding principle. However, the guidance provided by using such expressions as "fairly distributes" and "the assets of the marriage" will arouse doubt and uncertainty. Which children are to be covered? Is the earning capacity of either party an asset that should be "fairly" distributed?
It is difficult to see what advantage the amendment has over new section 25 of the 1973 legislation, as introduced in clause 3 of this Bill. The new provision is based on the existing body of case law, reinforced by a wealth of experience in the judiciary, and will continue to allow the courts to exercise considerable flexibility. The amendment would substitute for the general duty on the court to consider all the circumstances of the case, a generalised direction to make a fair distribution of the assets of the marriage.
I do not like dealing with something that is the product of much thought on a basis of uncertainty and, almost, of drafting, but I must do so because we are responsible for ensuring that any change that we make will not arouse uncertainty. It is bad enough being divorced and having to go through the mincing machine of the courts on the

questions of divorce and financial provision without having to make new case law out of one's own case. That would happen.
The amendment, which brings in a specific reference to,
including any pension and insurance rights
is unnecessary. Subsection (2)(h) of clause 3 directs the attention of the court to the value to each of the parties of the marriage of any benefit—for example, a pension—which, because of the dissolution of the marriage, a party will lose the chance of acquiring. That is already incorporated in the legislation.
The hour is late, and I hope that I will not be thought to be unappreciative of the thought behind the amendment if I say to the House that the courts will continue to be required to exercise their discretion, based on a consideration of all the circumstances, so as to do justice. The guidelines are revised in the Bill so as to give greater emphasis to the importance of each party doing everything possible to become self-sufficient. Those are the reasons that lead me to advise the House not to accept the amendment.

Ms. Richardson: I am not surprised by the Solicitor-General's response, because, apart from one minor matter to which we shall come later, he rejected every opportunity that we took to make the Bill a measure which we could support.
I should say something about the strange contribution of the hon. Member for Fulham (Mr. Stevens), who seems to be living in cloud-cuckoo-land. He seems to have dreamt up an imaginary constituent in an imaginary surgery, and he is living in an imaginary world, because, as the hon. and learned Member for Montgomery (Mr. Carlile) said, such a thing could not happen in the courts.

Mr. Alex Carlile: It should not happen.

Ms. Richardson: It should not happen, and it would be a strange court that gave such a judgment.

Mr. Martin Stevens: The hon. Member for Barking (Ms. Richardson) and the hon. and learned Member for Montgomery (Mr. Carlile) are woefully misinformed. I offered to show them examples of the case that I described, of which I have several. They are at liberty to say that I am talking nonsense for as long as they wish and to call my remarks bizarre. Obviously, anyone who brings the truth into the debates must seem to be rather strange.

Ms. Richardson: If the wife in this case had gone to live with someone who was better off than her partner in law, it is strange that the court decided to award her maintenance from her first husband. The hon. Gentleman says that he has proof, but the case is strange and I hope that such things do not happen, because they are not what this amendment is about.
I am disappointed that the Solicitor-General cannot accept what we believe would have made good sense—the inclusion of the phrase "common endeavour", to which I and my hon. Friend the Member for Sedgefield (Mr. Blair) referred. The Solicitor-General said that to include it would mean a revolutionary restructuring, but the words "common endeavour" would have reminded courts from the start that marriage is a two-person contract, and that each partner makes a contribution to the marriage in his or her way. Perhaps the wife, because of her circumstances, cannot contribute financially.
I remind the House that, although the amendment includes the provision that first consideration should be given to the children, in 40 per cent. of divorces no children are involved. Therefore, 40 per cent. of divorces are not covered by what the Government say is the objective of the Bill—the first consideration of children. Those first wives and that property are not covered by the Bill.
The Solicitor-General said, and I accept it, that we had amended our amendment by including a reference to pension rights and that I had wrongly told the hon. Member for Fulham that pensions were not mentioned in the Bill. I had forgotten that they were, but there is just a throw-away line saying, "For example, a pension", which does not take into account the great difficulties of older wives whose divorced husbands have superannuated pensions but who may not benefit from them. There is nothing in the broad terms of paragraph (h) to ensure that they get consideration for their contribution, which is not financial, but a different kind of contribution, towards a graduated pension.
We shall press this to a Division because it is an important amendment, which we wish to see made to the Bill. I hope that hon. Members will join me in the Division Lobby.

Question put, That the amendment be made: —

The House divided: Ayes 32, Noes 154.

Division No. 367]
[11.25 pm


AYES


Abse, Leo
McDonald, Dr Oonagh


Banks, Tony (Newham NW)
McWilliam, John


Blair, Anthony
Madden, Max


Callaghan, Jim (Heyw'd &amp; M)
Meadowcroft, Michael


Campbell-Savours, Dale
Mikardo, Ian


Carlile, Alexander (Montg'y)
Morris, Rt Hon J. (Aberavon)


Cocks, Rt Hon M. (Bristol S.)
Nellist, David


Corbyn, Jeremy
Pike, Peter


Cowans, Harry
Richardson, Ms Jo


Deakins, Eric
Skinner, Dennis


Dixon, Donald
Smith,C.(lsl'ton S &amp; F'bury)


Dunwoody, Hon Mrs G.
Spearing, Nigel


Harman, Ms Harriet
Wardell, Gareth (Gower)


Harrison, Rt Hon Walter
Weetch, Ken


Haynes, Frank



Hogg, N. (C'nauld &amp; Kilsyth)
Tellers for the Ayes:


Hughes, Simon (Southwark)
Mr. John Home Robertson and Mr. Gerald Bermingham.


Kirkwood, Archy





NOES


Alexander, Richard
Carlisle, Kenneth (Lincoln)


Amess, David
Cash, William


Ashby, David
Channon, Rt Hon Paul


Atkinson, David (B'm'th E)
Chapman, Sydney


Baker, Nicholas (N Dorset)
Chope, Christopher


Baldry, Anthony
Clark, Hon A. (Plym'th S'n)


Batiste, Spencer
Clark, Dr Michael (Rochford)


Bellingham, Henry
Conway, Derek


Benyon, William
Coombs, Simon


Berry, Sir Anthony
Cope, John


Best, Keith
Couchman, James


Bevan, David Gilroy
Currie, Mrs Edwina


Biggs-Davison, Sir John
Dorrell, Stephen


Boscawen, Hon Robert
Dover, Den


Bowden, Gerald (Dulwich)
Dunn, Robert


Braine, Sir Bernard
Durant, Tony


Brandon-Bravo, Martin
Dykes, Hugh


Bright, Graham
Eyre, Sir Reginald


Brinton, Tim
Fallon, Michael


Brooke, Hon Peter
Favell, Anthony


Brown, M. (Brigg &amp; Cl'thpes)
Fenner, Mrs Peggy


Bruinvels, Peter
Finsberg, Sir Geoffrey


Burt, Alistair
Forsyth, Michael (Stirling)


Carlisle, John (N Luton)
Fox, Marcus





Franks, Cecil
Oppenheim, Philip


Freeman, Roger
Ottaway, Richard


Fry, Peter
Page, Richard (Herts SW)


Gale, Roger
Powley, John


Galley, Roy
Raffan, Keith


Gardiner, George (Reigate)
Raison, Rt Hon Timothy


Garel-Jones, Tristan
Rhodes James, Robert


Goodlad, Alastair
Ridley, Rt Hon Nicholas


Gow, Ian
Ridsdale, Sir Julian


Greenway, Harry
Robinson, Mark (N'port W)


Ground, Patrick
Rowe, Andrew


Hamilton, Hon A. (Epsom)
Sackville, Hon Thomas


Hamilton, Neil (Tatton)
Sayeed, Jonathan


Hargreaves, Kenneth
Shaw, Sir Michael (Scarb')


Harris, David
Shelton, William (Streatham)


Havers, Rt Hon Sir Michael
Silvester, Fred


Hawksley, Warren
Sims, Roger


Hayward, Robert
Skeet, T. H. H.


Heathcoat-Amory, David
Soames, Hon Nicholas


Hind, Kenneth
Spencer, Derek


Holt, Richard
Spicer, Jim (W Dorset)


Hooson, Tom
Spicer, Michael (S Worcs)


Howard, Michael
Stanbrook, Ivor


Howarth, Alan (Stratf'd-on-A)
Stern, Michael


Hubbard-Miles, Peter
Stevens, Lewis (Nuneaton)


Hunter, Andrew
Stevens, Martin (Fulham)


Hurd, Rt Hon Douglas
Stewart, Allan (Eastwood)


Jessel, Toby
Stewart, Andrew (Sherwood)


Johnson-Smith, Sir Geoffrey
Sumberg, David


Jones, Gwilym (Cardiff N)
Temple-Morris, Peter


Jones, Robert (W Herts)
Thompson, Donald (Calder V)


Key, Robert
Thompson, Patrick (N'ich N)


King, Roger (B'ham N'field)
Thome, Neil (Ilford S)


Knight, Gregory (Derby N)
Thurnham, Peter


Knight, Mrs Jill (Edgbaston)
Tracey, Richard


Knowles, Michael
Twinn, Dr Ian


Lang, Ian
van Straubenzee, Sir W.


Lawler, Geoffrey
Waddington, David


Leigh, Edward (Gainsbor'gh)
Wakeham, Rt Hon John


Lilley, Peter
Walden, George


Lloyd, Peter, (Fareham)
Waller, Gary


Lyell, Nicholas
Wardle, C. (Bexhill)


MacKay, Andrew (Berkshire)
Watson, John


Maclean, David John
Watts, John


Major, John
Whitfield, John


Malins, Humfrey
Whitney, Raymond


Mather, Carol
Wolfson, Mark


Mayhew, Sir Patrick
Wood, Timothy


Meyer, Sir Anthony
Yeo, Tim


Morrison, Hon C. (Devizes)
Young, Sir George (Acton)


Moynihan, Hon C.



Murphy, Christopher
Tellers for the Noes:


Nelson, Anthony
Mr. Douglas Hogg and Mr. Tim Sainsbury.


Neubert, Michael



Norris, Steven

Question accordingly negatived

Ms. Richardson: I beg to move amendment No. 5, in page 3, line 26, at end insert
'and to a person over that age but under 21 years who is reasonably and appropriately undergoing instruction at an educational estalbishment or trainig for employment or for a trade, profession or vocation and to a person over that age who suffers from a mental or physical handicap or illness'.
The amendment seeks to extend the "first consideration" to the welfare of a child beyond the age of 18 years, which is the limit that is set in the Bill. It seeks to extend the age limit to 21 for educational requirements and to establish that there should be no age limit when there is a mental or physical handicap. We had an interesting debate in Committee and I thought that I detected some sympathy for the proposition that the age limit should be extended to 21 years.
There are many instances where the custodial parent still has to cope with the expense of an adult child, as it were, who is a student and undergoing full-time education,


full-time training or an apprenticeship. We believe that it would be right for the courts to take that factor into account up to the age of 21. Young people are still assessed as their parents' responsibility, and to introduce a cut-off point at 18 years would be wrong and unfair.
Some Conservative Members who are present are likely to have children aged between 18 and 21. I am sure that they will agree that those children are still their responsibility while they are in full-time education, as many of them will still be. I hope that they will reflect, when they are thinking about their own children, upon the difficulties that would face a first wife who may have had maintenance awarded by the court for the child up to the age of 18 and who faces the cut-off point. She will have to cope with continuing education needs beyond that age.

Mr. Tony Baldry: What does the amendment seek to achieve that cannot be achieved already under section 29(3) of the 1973 Act?

Ms. Richardson: There are those who have been fond of reminding us that the substitute section 25(1) seeks to provide that children should be considered in education terms beyond the age of 18. That is the long and the short of it. I accept that, on the next page of the Bill, the court also has the duty to consider the financial needs of the children and their educational requirements, as well as the responsibilities of the parents. But that is not necessarily the first consideration. Of course the courts may, under the Bill, go further than the age of 18 in exceptional circumstances. But as a matter of policy we say that 18 is too young an age, and that it restricts the court in its thinking about how to treat children who are older than 18. In other words, a restrictive limitation has been placed in clause 25(1).
The hon. Member for Fulham (Mr. Stevens) mentioned a constituency case. Three or four weeks ago, a case was brought to my surgery relating to this point. A woman who had been divorced for some years had a young son aged 17, who had just started an apprenticeship. Incidentally, I am sorry to say that there are only a few apprenticeships left. She received maintenance but was worried what would happen when her son reached the age of 18. She was worried that she would not get that support. I tried to comfort her, and told her that the court had some discretion, and she would have to explain the position to it. However, the truth is that under the Bill, the first consideration must be those children aged 18 or under.
I believe that we should extend the age to 21. Indeed, in Committee it was asked why we should say 21, and not 22 or 19. I agree that it is difficult to find a cut-off point, but I think that 21 is probably the best that we can achieve.
In the case of a parent who has the care of an adult child with a mental or physical handicap, we have decided that there should be no age bar. In Committee, I recall referring to a constituent whose daughter—who has unfortunately now died—was aged 40. The Solicitor-General pointed out that that case would not be covered by the amendment then under discussion, which sought to ensure that mentally or physically handicapped children were a consideration of the court up to the age of 21.
It would be a good move if the Bill said that mentally or physically handicapped children should be a first consideration of the court, regardless of their age. Years ago, mentally or physically handicapped children did not

have such a long expectation of life as they now fortunately have. We all know of one-parent or two-parent families where handicapped children live happily in loving homes. However, those children may be well over the age of 18, 21 or even 30. At adult training centres, one sees people making a contribution for a small amount of money. A parent is very happy that his or her child should have the opportunity of doing so.
Often, it is women aged 50 or 60 who look after those 35-year-old or 40-year-old children. We should seriously consider that care, and the amount of maintenance that the court should award in that regard. I hope that Conservative Members will look at this point with the utmost sympathy. I think that they will probably have reflected on the education point, and I hope that they will support it, and that they will recognise that in the case of those with mental and physical handicaps, there is a real problem, and to cut off any suggestion of maintenance, except at the wider discretion of the court, at the age of 18 would be unfair. How often have we heard parents with children who suffer in this way saying, " I always wonder what will happen to my child when I go"? We cannot cope with that, but we can do something to help up to that point if the amendment is accepted. I hope that the House will look on it with sympathy and vote for it.

The Solicitor-General: I am grateful to the hon. Member for Barking (Ms. Richardson) for the way in which she moved this amendment. All of us know of children—they seem to be increasing in number—with some handicap who live for a long time into adult life. However, we are talking about the extent to which the requirement for first consideration should be given to the welfare of children. We are not talking about the extent to which it shall be possible for financial provision to be made for children, or whether there should be an upper age limit for that. As the hon. Lady acknowledged, section 29 of the Matrimonial Causes Act 1973 provides for financial provision for children, notwithstanding that they have reached the age of 18, in special circumstances.
I have to develop something of a refrain in reciting the Law Commission's approach, because the Bill is intended to reflect its recommendations. This amendment, contrary to what the Law Commission recommended, deals with a limited class of adult children who are placed in a preferential category to others. It is common ground, as the hon. Lady said, that some upper limit is required. Those who support this amendment think that it should be 21. The age of majority is now 18, which accords with what is in the Bill. There is nothing magic about 21 now. It is an arbitrary figure. Many young people are still undergoing further education or working as apprentices by the time they reach 21.
The amendment would require the courts to give preference to one young adult over another, when they are separated by perhaps a year. It would not be right to give preferential treatment, for example, to a 20-year-old apprentice over his 21-year-old sister who is taking a course at a technical college. There is no logic to justify it. Given that there must be a cut-off point, it is better to make it the time when the child becomes an adult and ceases to be in the custody of either parent.
It is not as though the interests of children over the age of 18 are overlooked. Section 29 of the 1973 Act makes provision for them. The difference is that, as the Bill


stands, only a child who is still in the custody of the parent would be given first consideration. The Government do not accept that adult children who are no longer in the custody of the parent should be given the preferential treatment of first consideration. Putting it in a blunt and homely way, the wider the area of first consideration, the thinner one spreads whatever butter there is. There must be a fairly close categorisation, and I have stated what the Government believe to be the most sensible way to fix the upper age.
It is, in any event, very much the exception for financial provision to be made in respect of adult children. By and large, financial orders made in favour of children are confined to children of school age. If first consideration extended to the welfare of adult children, the protection given to the welfare of minor children would be diluted. The comparatively few adult children who may reasonably expect to be provided for within the terms of section 29(2) and (3) will not be overlooked by the court in any event. They cannot, however, be regarded as so vulnerable and so much in need of protection as minor children and we believe that it would not be equitable to treat them on the same basis. There is no evidence that the welfare of adult children is overlooked. The concensus of opinion expressed to the Law Commission, which led to the recommendation in its report, was that the provision of adequate financial support for children should be an overriding priority in relation to children in the care of a custodial parent — that is, a parent looking after children.
I appreciate that there are hard cases and that in many instances it is difficult to justify the fact that one person comes just within the terms of the provision while another with no less attractive a claim falls just outside it no matter what threshold is set. Nevertheless, a threshold must be set. I hope that in this brief contribution I have been able to explain to the House why the Government support the recommendations of the Law Commission, which is implemented in the Bill.

Ms. Richardson: I am becoming repetitive, too, in expressing my disappointment. Of course, any cut-off point will exclude certain cases. Neverthless, in this day and age all hon. Members, one hopes, are trying to encourage children to stay on at school and to take some training. Indeed, some actually attribute certain problems of "law and order" to the lack of educational background and training. That being so, it is unfair that a custodial parent with responsibility for the child left in her care—the parent is usually a woman — except under a provision not central to this Bill, cannot claim maintenance payments for the period of continuing education. Such a parent, knowing that payments will be cut off when the child reaches the age of 18, might actively discourage the child from continuing with education or training if that would place a burden on the parent, as it probably would. That is a bad thing, and we should not encourage it.
The Solicitor-General did not say much about the second part of the amendment, save to acknowledge that an increasing number of children with mental or physical disabilities now live longer lives, and we are all pleased about that. He did not say that such children are a financial responsibility of the divorced parents.
In both cases, the Solicitor-General spoke of spreading the butter more thinly, but parents have a responsibility for

children with continuing education needs or with a disability which prevents them from being independent persons. We are dealing here with adult children who are not yet independent, who are away from home and who depend on the parent or parents, divorced or not, for support while they complete their education or, in the case of mentally or physically handicapped adult children, perhaps for the rest of their natural lives, because they cannot earn a living for themselves.
I propose to press the amendment to a Division because this is a very important matter and I know that my hon. Friends who are still here will support me. I hope that the Government will feel some shame at not having at least acknowledged some of the points that we have made,especially this very important one.

Question put, That the amendment be made: —

The House divided: Ayes 29, Noes 145.

Division No. 368]
[11.55 pm


AYES


Abse, Leo
McDonald, Dr Oonagh


Banks, Tony (Newham NW)
Madden, Max


Blair, Anthony
Meadowcroft, Michael


Callaghan, Jim (Heyw'd &amp; M)
Mikardo, Ian


Campbell-Savours, Dale
Morris, Rt Hon J. (Aberavon)


Carlile, Alexander (Montg'y)
Nellist, David


Cocks, Rt Hon M. (Bristol S.)
Pike, Peter


Corbyn, Jeremy
Richardson, Ms Jo


Cowans, Harry
Skinner, Dennis


Dixon, Donald
Smith, C.(Isl'ton S &amp; F'bury)


Dunwoody, Hon Mrs G.
Wardell, Gareth (Gower)


Harman, Ms Harriet
Weetch, Ken


Harrison, Rt Hon Walter



Haynes, Frank
Tellers for the Ayes:


Hogg, N. (C'nauld &amp; Kilsyth)
Mr. Gerald Bermingham and Mr. John McWilliam.


Hughes, Simon (Southwark)



Kirkwood, Archy





NOES


Alexander, Richard
Durant, Tony


Amess, David
Fallon, Michael


Ashby, David
Favell, Anthony


Atkinson, David (B'm'th E)
Fenner, Mrs Peggy


Baker, Nicholas (N Dorset)
Forsyth, Michael (Stirling)


Baldry, Anthony
Fox, Marcus


Batiste, Spencer
Franks, Cecil


Bellingham, Henry
Freeman, Roger


Benyon, William
Fry, Peter


Berry, Sir Anthony
Gale, Roger


Best, Keith
Galley, Roy


Bevan, David Gilroy
Gardiner, George (Reigate)


Biggs-Davison, Sir John
Garel-Jones, Tristan


Boscawen, Hon Robert
Goodlad, Alastair


Bowden, Gerald (Dulwich)
Gow, Ian


Brandon-Bravo, Martin
Greenway, Harry


Bright, Graham
Ground, Patrick


Brinton, Tim
Hamilton, Neil (Tatton)


Brooke, Hon Peter
Hargreaves, Kenneth


Brown, M. (Brigg &amp; Cl'thpes)
Havers, Rt Hon Sir Michael


Bruinvels, Peter
Hawksley, Warren


Burt, Alistair
Hayward, Robert


Carlisle, John (N Luton)
Heathcoat-Amory, David


Carlisle, Kenneth (Lincoln)
Hind, Kenneth


Cash, William
Hogg, Hon Douglas (Gr'th'm)


Channon, Rt Hon Paul
Holt, Richard


Chope, Christopher
Hooson, Tom


Clark, Dr Michael (Rochford)
Howard, Michael


Conway, Derek
Howarth, Alan (Stratf'd-on-A)


Coombs, Simon
Hubbard-Miles, Peter


Cope, John
Hunter, Andrew


Couchman, James
Hurd, Rt Hon Douglas


Cranborne, Viscount
Jessel, Toby


Currie, Mrs Edwina
Johnson-Smith, Sir Geoffrey


Dorrell, Stephen
Jones, Gwilym (Cardiff N)


Dover, Den
Jones, Robert (W Herts)


Dunn, Robert
Key, Robert






King, Roger (B'ham N'field)
Sims, Roger


Knight, Gregory (Derby N)
Skeet, T. H. H.


Knight, Mrs Jill (Edgbaston)
Soames, Hon Nicholas


Knowles, Michael
Spencer, Derek


Lang, Ian
Spicer, Jim (W Dorset)


Lawler, Geoffrey
Stanbrook, Ivor


Leigh, Edward (Gainsbor'gh)
Stern, Michael


Lilley, Peter
Stevens, Lewis (Nuneaton)


Lloyd, Peter, (Fareham)
Stevens, Martin (Fulham)


Lyell, Nicholas
Stewart, Allan (Eastwood)


MacKay, Andrew (Berkshire)
Stewart, Andrew (Sherwood)


Maclean, David John
Sumberg, David


Major, John
Temple-Morris, Peter


Malins, Humfrey
Thompson, Donald (Calder V)


Mather, Carol
Thompson, Patrick (N'ich N)


Mayhew, Sir Patrick
Thorne, Neil (Ilford S)


Meyer, Sir Anthony
Thurnham, Peter


Morrison, Hon C. (Devizes)
Tracey, Richard


Moynihan, Hon C.
Twinn, Dr Ian


Murphy, Christopher
van Straubenzee, Sir W.


Nelson, Anthony
Waddington, David


Norris, Steven
Wakeham, Rt Hon John


Oppenheim, Philip
Walden, George


Ottaway, Richard
Waller, Gary


Page, Richard (Herts SW)
Wardle, C. (Bexhill)


Powley, John
Watson, John


Raffan, Keith
Watts, John


Raison, Rt Hon Timothy
Wells, Bowen (Hertford)


Rhodes James, Robert
Whitfield, John


Ridley, Rt Hon Nicholas
Whitney, Raymond


Ridsdale, Sir Julian
Wolfson, Mark


Robinson, Mark (N'port W)
Wood, Timothy


Rowe, Andrew
Yeo, Tim


Sackville, Hon Thomas
Young, Sir George (Acton)


Sainsbury, Hon Timothy



Sayeed, Jonathan
Tellers for the Noes:


Shaw, Sir Michael (Scarb')
Mr. Archie Hamilton and Mr. Michael Neubert.


Shelton, William (Streatham)

Question accordingly negatived

Mr. John Morris: I beg to move amendment No. 6, in page 3, line 30, after 'shall', insert
'not take account of the conduct of each party except where it would be inequitable to leave that conduct out of account, but shall'.

Mr. Deputy Speaker (Mr. Ernest Armstrong): With this it will be convenient to take the following amendments: No. 8, in clause 3, page 3, line 30, after 'shall', insert
'not have regard to the conduct of the parties unless the conduct complained of is of such an exceptional nature that it would be inequitable to disregard it, but shall'.
No. 56, in page 4, line 11, leave out paragraph (g).
No. 15, in page 4, line 11, leave out from 'parties' to end of line 13 and insert
'in so far as that conduct was calculated to dissipate the joint or several assets of the parties'.
No. 16, in page 4, line 12, leave out
'in the opinion of the court be inequitable'
and insert
'be contrary to natural justice'.

Mr. Morris: In view of the hour, I shall move the amendment as briefly as possible.
The issue is whether the Bill as drafted limits the consideration of conduct to the manner and extent to which it is considered by the courts now.
The Bill puts it one way. I seek to put the presumption the other way. The issue was raised on Second Reading. We have had the opportunity of considering the extensive representations of the Law Society and of many judges.
It is common ground that none of us wants to return to the experience we had in practice in our younger days, to the principle of fault. That is the danger here and which

the Law Society feared, in that it would become incumbent upon them to investigate fault as regards conduct in the context of maintenance.
The Bill says that the court in particular shall have regard to a number of factors and conduct is one of them. I am concerned about the words "in particular" when they refer to that matter, let alone the reference to other matters.
We have had the advantage of considering the views of distinguished lawyers such as Lord Denning, Lord Elwyn-Jones, and Lord Scarman and Sir John Arnold, the President of the Family Division. He has rendered particularly valuable service to the Special Standing Committee. In calling a senior judge before the Special Standing Committee, some of my right hon. and hon. Friends were concerned that this was a constitutional issue of great importance. We have been led to believe in our training in the division between the judiciary, the executive and the legislature and we were taught in our law schools that only in the person of the Lord Chancellor was there the fusion of all three. I do not object. Indeed, it is within the powers of the Committee to call whomsover it wishes and it can certainly call a judge if it seeks his assistance.
What is important in calling a judge is that one should not mix his role as a witness and use whatever views he propounds as views on the legislation as a bulwark for further consideration of any interpretation that he gives to the Committee. That is a real danger.
I thought that the Solicitor-General was on dangerous ground in the Committee having regard to the concern expressed by the Law Society. He invited—I paraphrase—the circulation of views. He said:
I simply offer the humble suggestion that the Law Society might consider that it would do better to publicise the views of Sir John Arnold amongst its members rather than publicise the doubts that have been expressed.
I am sure that that was an off-the-cuff and not a considered remark by the Solicitor-General, who is always so careful in the way that he advises the Committee and the House. If the views of a very eminent judge expressed before the Committee were circulated, that would have severe limitations; it is not a path that we should embark upon without proper consideration.
There is no basis in our law for anticipatory judgments. To circulate such an opinion and invite its circulation, as the Solicitor-General did, is to embark on a wholly new path. It increases, extends and enlarges the role of the judiciary in a way that hitherto we have never experienced, so far as I am aware.
The view of an eminent judge before the Committee of the way that the court would interpret the law—I do not say this in an offensive way—is no more important than if he addressed the annual meeting of the Bar, the Law Society or any gathering. It would be wholly wrong. If it were deemed right that members of the Law Society should look at conduct and those concerned were subsequently sued in negligence for not having carried out the necessary investigations, the wise words of the President of the Family Division would not help one little bit in any subsequent litigation as regards conduct.
I believe that it is right for me to delay the House for a moment to express my concern and say that the House should make it clear that this is not the path that we should take. If one went along that road, and called on one side one judge, and on the other side another judge, that would not be the way to consider legislation. Parliament has a


responsibility. However eminent or great the judge, his role in advising the Committee cannot and should not be used as a way of interpreting legislation. He is not the sole judge; he is not the highest judge in the land. No man is immortal. I wish Sir John a long life and office in the Family Division. He may be called to higher things in our courts. However, it is important to understand that this is a personal view. We value it very much. It is important, and helped the Committee considerably, but it cannot be prayed in aid in this way, as the Solicitor-General did, perhaps inadvertently.
There is ambiguity with regard to how the courts would look at conduct. If we say that we do not want to change the way that the courts now look at conduct, having regard to the concern expressed by Lord Denning—I quoted his remarks on Second Reading—Lord Elwyn-Jones and other judges, Parliament cannot abdicate its responsibility. It cannot and should not be said to Parliament that because there is ambiguity in the Bill as at present drafted, the courts have the ability to spot such a matter early on, and the matter would go to appeal. Then Sir John and his friends could resolve the matter, and that would bring the ambiguity to an end.
That poses one problem. In the meantime, before the matter was resolved, there would be uncertainty. There would be difficulties in hundreds of registrars' courts up and down the land until the matter was resolved. But above all, where there is uncertainty which is canvassed by eminent judges, and there is a conflict of view among the judiciary, it is not the role of Parliament to abdicate its responsibility and say, "All will be well on the day. It may not be on day one, but it will be six months or three years later when the matter goes to appeal and the courts ultimately put right what Parliament has failed to do."
It is our job to set out legislation as precisely as possible and, with the material that we have supplied to them, for the courts to interpret it—not the other way round. To pray in aid, in the face of the difficulty that has been pointed out, the views of judges and to answer the apprehensions that have been canvassed by saying, "All will be well on the day because Sir John Arnold has told us how he will eventually interpret the legislation," is not the way to do it. It is for Parliament to face up to the ambiguity and give a clear direction to the courts.

Mr. Alex Carlile: Many hon. Members will agree that the gross and obvious test which arose from Wachtel v. Wachtel is unsatisfactory. It is unsatisfactory in the way in which it arose and in the way that it developed. It is for Parliament to lay down the tests to be applied to conduct, if conduct is to be considered, and such tests should not be laid down in the rhetorical adjectives that were used in Wachtel v. Wachtel.
If the Bill is enacted as drafted, conduct will assume a new and more significant position, and there are two views of the effect of the subsection with which we are concerned: one that it will make no difference, and the other that it will make a substantial difference to the way in which cases are conducted. I do not want to reiterate what the right hon. and learned Member for Aberavon (Mr. Morris) said about the constitutional issue which arose from the evidence given by the President of the Family Division. I echo his words and agree with them wholeheartedly, emphasising, as he did, that whatever was said in the notional appeal to which Sir John referred in

his evidence before the Committee, the House of Lords might not agree with him in due course. Nor might his successor as President.
The Law Society, it appears, will advise solicitors o undertake investigations into conduct — indeed, it will advise them that they are under a duty to undertake such investigations—and to place issues of conduct before the court. The letters which my hon. Friends and I have received from the public about this part of the Bill show that they do not share Sir John Arnold's view but, ratheir, the Law Society's view. The great weight of those letters have been from ex-husbands and husbands going through divorce proceedings who feel that the effect of the measure will be to encourage investigations into their wives' or ex-wives' conduct.
It is important for us to bear in mind that there are few women in this House. My party is just as guilty as any other of deficiencies in this regard—

Mr. Baldry: More so.

Mr. Carlile: More guilty; I agree with that suggestion. It is important for us, mostly men, to bear in mind the position of women particularly those with children, who may find themselves deserted through the breakdown of their marriages. If the public are to tell their solicitors that they must look into conduct, and if solicitors accept those instructions, I fear that there will be an unhappy result in the courts. Apart from a lot of dirty linen being washed—in some cases in public, in others at private hearings — perhaps more damaging will be the effect of investigations into conduct on the children, which will be harmful and could be devastating.
When heat is generated at the end of a marriage, as unfortunately happens all too often, it must affect the children. Enough heat is already generated by financial considerations, and if we are to have endless investigations into conduct, we will have the employment, once again, of inquiry agents going around seeing what wives are up to. It happened in virtually every case when I started to practice at the Bar, and it will be a damaging development.
The view of my party is that many matters should be taken into account when deciding upon financial provision on the breakdown of marriage. The Bill contains, correctly, many of those matters. In almost every case when there has been conduct which can be characterised in many difficult ways—the current way is by the use of the phrase "gross and obvious"—there are financial considerations which are bound to effect the matrimonial settlement in any event.
Much was said earlier about maintaining marriage as the basic institution of family life and about attempting to strengthen marriage, which is continually under attack because of social pressure. One way to strengthen marriage and to heighten respect for it is to give prospective partners a sense of financial responsibility before they enter into a marriage contract, knowing that if there is a breakdown of the marriage conduct will be taken into account only in wholly exceptional circumstances. We would go further than any other party in the House and say that conduct should be taken into account only when it has been calculated to dissipate the joint or several assets of the parties.
We urge the Attorney-General to accept that the Bill must spell out clearly that conduct can be taken into account only in what are really exceptional circumstances,


that we are not prepared to countenance the type of investigation which the Law Society, a responsible body considering the matter in depth and in detail, believes inevitable if the Bill is enacted as drawn, and to present to the House conduct in a way which means that it is so greatly restricted as virtually never to be considered by the court.

Mr. Baldry: One of the hopes in having a Special Standing Committee was that that procedure would succeed in dispelling some of the misapprehensions about the Bill which had been raised on Second Reading.
When Sir John Arnold appeared before the Committee, I asked him, in terms, whether the present definition of conduct in the Bill was in line with current practice and case law on conduct. He said, in terms, that that is what he believed. That should be acceptable to the House. To seek to continue to stir up misapprehension about the Bill's effect does no service to anyone.
If the right hon. and learned Member for Aberavon (Mr. Morris) feels and suspects that Sir John Arnold's opinion will not prevail in the Family Division, he has not been across the road recently to appear before him in that division. My experience is that if Sir John Arnold has said that, almost certainly that is what will happen when the first case comes before the Family Division.
We do no one any service by seeking to bring back the investigations into conduct that we had many years ago.

Mr. John Morris: The hon. Gentleman must appreciate the point made by the hon. and learned Member for Montgomery (Mr. Carlile), that the Family Division is not the final court of appeal.

Mr. Baldry: I note that point. Although the right hon. and learned Gentleman sought to question the constitutional position of the President of the Family Division, at no time did he advance any arguments to distinguish what the president said, nor did the right hon. and learned Gentleman suggest why he thought that the President's interpretation of the law was wrong. If it is a toss-up between the previous Master of the Rolls and the present President of the Family Division, my money is on the President of the Family Division.

Mr. Abse: I welcome the fact that my right hon. and learned Friend the Member for Aberavon (Mr. Morris) has placed squarely into our discussion the constitutional issues that arise. He was generous to the Solicitor-General in suggesting that what happened in Committee was inadvertent — the Solicitor-General is not so careless. The record of our proceedings shows my disquiet at the course that the Solicitor-General is following, and that I immediately raised the issue. With his customary pertinacity, he has continued to follow his course.
The constitutional issue is important for this clause, because the Solicitor-General insists that our alarms about the wording of the clause are unnecessary. He has relied almost wholly on the evidence given to the Special Standing Committee by the President of the Family Division, Sir John Arnold. The Solicitor-General said that he gave an answer contrary to the views expressed by Lord Denning and the Law Society. He insists that we should not accept them. To use his phrase, we have had an interpretation
from the horse's mouth".

The appellate court will deal with the provision as the President interprets it. Evidently my right hon. and learned Friend agrees with me that to rely on the President's anticipated ruling introduces a dangerous constitutional doctrine. We have to decide today whether to alter the clause in a ltid to achieve our objectives, or to abandon our traditional role and rely on the declared future judicial interpretation, which was given to us in evidence. If we do that, we shall be taking a fateful step which will take us far beyond the narrow issue of the clause.
I remind the House of Montesquieu' s often quoted words:
There is no liberty if judicial power be not separated from the legislative. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control".
I am apprehensive about the Solicitor-General's arguments for the clause. In this I am certainly not being idiosyncratic. The arguments have already been widely and adversely commented on, as a letter from Mr. Ole Hansen in The Times of today illustrates. Hitherto, the preoccupation of libertarians has been to insist that nothing must be done to curb the independence of the judiciary.
This House imposes severe restraints on itself. Only in the most narrowly defined circumstances can reference be made to a matter awaiting or under adjudication, and reflections about the character and motives of the judge are determinately inhibited. When the new Select Committees were set up, the Lord Chancellor's Department and the Law Officers Department were rigorously excluded from the scope of the system. The legislators were not to intrude in the judiciary and the judicial process.
A new apprehension is now abroad. It is precipitated to no small degree by the manner in which the debate on this clause has developed. The unease is not that the legislature will misuse the judiciary, but that the judiciary will sometimes clandestinely and sometimes overtly—as in this case—so endanger the legislative process that judges become both statutory law makers and law interpreters. Is the Executive, by the invitation in this case from the Solicitor-General, seducing the judiciary, and is the House of Commons, as the unintended consequence of its Special Standing Committee system, unwittingly colluding in that seduction?
12.30 am
This is not an isolated matter. If it were, I am sure that there would be no unease. There is increasing unease about the new intimacy growing between the Executive and the judiciary. The House will recall that last year, when the Master of the Rolls, in his judicial capacity, was contemplating the sequestration of a union's assets it was discovered that not long previously he had held secret discussions, at the instigation of the Foreign Secretary, with the permanent secretary of the Department of Employment. It has been alleged, and never denied, that during those discussions Sir John Donaldson proffered to the Government advice on changes in the law on industrial relations, including the introduction of legal restrictions on the right to strike and an elaboration of how the judiciary could play a greater role in industrial relations.
It is well known to some of us that some judges privately expressed their resentment at the fact that the Master of the Rolls had so readily allowed himself to be sucked into the maelstrom of political battles that should be resolved by Parliament and the unions. Obviously, for workers to regard judges as allies of the Government is to invite a dangerous contempt of the law.
The eagerness to reduce the distance between the law interpreter and the law maker is not confined to the Master of the Rolls. To the surprise of many, the Lord Chief Justice, at the request of the Chairman of the Special Standing Committee—with perhaps more courtesy than judicial wisdom—readily acceded to sending Mr. Justice Skinner to the Special Standing Committee to submit to its inquisition and so guide Members of Parliament in shaping and determining the Criminal Attempts Act 1981.
Now the President of the Family Division has given evidence to our Special Standing Committee in relation to this clause. He said,
some attempt were made to argue that the new provision enlarged the extent to which conduct should be taken into account.
He also said:
I do not anticipate this would be likely to be the subject of more than one appeal in the judgment of which I would expect it to be firmly rejected.
Sir John Arnold, in advance of an anticipated hearing, has, in my judgment and, I suspect, in the judgment of most people reading that evidence, unequivocally given his views.
Some of us who heard his Lordship's cogent contribution recalled John Locke's warning in 1690:
It may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them.
But trampling upon any squeamishness that some of us may have had about the constitutional niceties, the President went further. He swept aside the Law Society's plea to the legislature to alter the clause and save solicitors from an unpleasant task that would be continued for years until an appellate decision, in the normal course of events, rendered it unnecessary. He sought to appease those who had such fears and said:
I expect that when this point comes before the Court of Appeal as it is bound to do … it will happen in a matter of months or a year at any rate.
The President of the Family Division was giving public notice that his eagle eye would lead him to pluck out and expedite for appellate judgment any hearing that raised the conduct issue. Hitherto, apart from Mr. Justice Skinner, only a judge who disbarred himself from sitting by becoming chairman of the Law Commission — the advisory body to the Lord Chancellor—has appeared before us as legislators. On Second Reading I asked the Solicitor-General to call the chairman of the Law Commission before the Committee, but I asked in the knowledge that the chairman, although a judge, does not sit as one while he is a law commissioner. Now we have this new phenomenon. We have lived to see the day, as Members of Parliament, when, in effect, a judicial judgment by a sitting appellate judge has been given in a Committee of the House of Commons.

Mr. Baldry: Did the hon. Member or any Member of the Special Standing Committee at any time before Sir John Arnold came to give evidence object to his giving evidence? If it were not to give his interpretation of the Bill, what did the hon. Member think Sir John Arnold was going to do when he came before the Special Standing Committee?

Mr. Abse: So far as I am aware, the invitation to Sir John Arnold was at the instigation of the Solicitor-General, who no doubt wished Sir John Arnold to come. It was not within my power to make that determination.It is no use trying to shift the responsibility for Sir John

Arnold coming before the Committee, valuable as his evidence was, and then say that I or somebody else should have objected before he came. If the hon. Member will read with care the evidence, he will see that at one point Lord Scarman saw the dangers and sought to distance himself by saying that there were certain things which he could say in his capacity, rather than that it was wise for the President to say, given his special position.
I go further. What is worse, not only did the judge take such a view, but the Solicitor-General, with uncharacteristic insouciance, has since proceeded further down the road opened up by Sir John Arnold, as my right hon. and learned Friend the Member for Aberavon has indicated. He has impatiently expressed his desire that the Law Society, instead of publicising its doubts on the conduct clause, should circulate all its members with Sir John Arnold's statement, and that they should quench whatever scruples they and Lord Denning may have on the interpretation. Such diktats to lawyers may raise no eyebrows in the Soviet Union, but as yet neither our courts nor our lawyers are governed by ukases, but by the well-tried and tested system of legal precedents. The system has served us well and when, by condoning the Executive's attempt to cajole the judiciary into anticipatory judgments, we breach it, we put our liberties at peril.
From the Law Courts at the Strand down Whitehall o the House of Commons there is, as many people know, a good bus service. It is a route, however, which the judiciary should hesitate to use. In the meantime, we have the duty to see that the Government give no free passes to our judges, who otherwise may indeed find themselves arriving at dangerous destinations'?
I wish to be fair to the Solicitor-General, because the comments which he made in Committee, which caused me and many outside the House major concern, did have a qualification. He said:
I simply say that one cannot do much better than the President of the Family Division when seeking an informed view of how the courts will interpret a legislative provision, because it is his division that will interpret it and he is the head of that division.
I am quoting this to emphasise the qualification which the Solicitor General made:
It is abundantly clear—subject, of course, to argument that may be addressed to the judge in an individual case—that the strong probability is that the appellate court will deal with the provisions in the way in which he at present interprets it."—[Official Report, Special Standing Committee, 1 May 1984; c. 582.]
A genuflection was made by the Solicitor-General to the belief that it is improper to make anticipatory judgments, by saying that any ruling would be subject to argument and rest with the judge.
As the Solicitor-General has continued to argue that interpretations should be brushed aside — that is his justification for maintaining the status quo — the qualification that he made in Committee is bound to be regarded as nothing more than a charade. It does not weaken the argument that the House must take control of the clause so that we do not create a dangerous constitutional precedent by passing it on to the Family Division.
The clause which I have formulated in my amendment is bound in words which seek to deal with the objections which the Solicitor-General mentioned in respect of the clause which I suggested, following the example of Lord


Elwyn-Jones, in which I drew attention to the exceptional nature of circumstances. My amendment deals with the conduct complained of being of an exceptional nature.
I hope that the Solicitor-General will pay attention to the change that is taking place. I hope he will find it more acceptable. I do not believe that solicitors want to be scavengers. They do not want to feel compelled to make prurient inquiries, as a result of a clause which, according to distinguished lawyers and a large number of judges, is subject to the interpretation put upon it by Lord Denning, and which in my view and in that of the Law Society places a duty on a solicitor to perform an unpleasant task. We do not want the maintenance of wives to be decided upon trivial issues of conduct.
I have not fought, as I have throughout my parliamentary life, to eliminate questions of matrimonial offences and misconduct from the law for the whole question to be brought back elliptically, particularly since it is said by the President of the Family Division that that is not being done. I hope that the Solicitor-General will be more receptive.

Mr. Blair: There is no difference between the Government and ourselves about what the law should be. We agree that conduct should not generally be taken into account, unless it is of a serious nature. The only question is whether that aspiration is translated into actuality in the Bill.
Conduct is included with other matters that must be taken into account. It is mandatory that the court shall have regard to such matters. The problem is that all the other matters to which the court shall have regard are those for which we wish the court positively to have regard, unless particular circumstances obtain. The problem is that we do not want the court to take conduct into account generally. There is an uneasy drafting problem. The court must have regard to conduct if it thinks that it is wrong to disregard it, but we believe that the court should not have regard to conduct. That is one major difficulty in connection with what will be new section 25.
In all the judicial decisions about conduct, the judges have been careful to emphasise that only in serious cases will conduct be taken into account. In other words, it should not be taken into account in run-of-the-mill cases. What is omitted from the proposed new section 25 is any emphasis to make it clear to the courts that conduct should be taken into account only in exceptional circumstances.
12.45 am
If there is an ambiguity—one is said to exist by many eminent people and organisations, such as Lord Denning and the Law Society — it is crazy for Parliament not to attempt to remove it. If it can easily remove it — we say that it can by accepting the amendment—it seems nothing short of perverse not to do so.
The hon. Member for Banbury (Mr. Baldry) accused those of us who have tabled amendments of stirring up apprehensions about the issue of conduct coming back into the law. We are not stirring up apprehensions by tabling amendments; we are trying to allay the apprehensions that already exist. The meeting with the National Association of Citizens Advice Bureaux, which the hon. Member for Banbury helpfully set out, made it clear that it thought that many people believed that the Bill would change the law

and allow conduct to be dragged back into divorce proceedings. If we are to translate into practice the aspiration that is shared by hon. Members on both sides of the Chamber and ensure that conduct is taken into account only in exceptional circumstances, the Bill is an inadequate mechanism for that translation. The Government should accept the amendment or give us good reasons for refusing it.

The Solicitor-General: However eccentric this might be thought to be, I shall deal with the amendments and then endeavour to assist the House on the great constitutional issue that has been discussed. The amendments have enabled us to discuss once again the anxieties that have been expressed about the relevance of conduct to financial provision. Subsection (2)(g) of the new section 25, which deals with conduct, is included in the Bill because it represents one of the changes which it is intended should be made to the existing section of the 1973 Act.
The proposed removal from the existing section 25 of the requirement that the courts should attempt to restore the parties to the financial position in which they would have been had the marriage continued has necessarily involved a reformulation of the circumstances in which conduct should be taken into account. As the reference to conduct in the existing section 25 appears as a tailpiece to that section, with the removal of the tailpiece there has to be a restructuring of the format. At present, when making an order, section 25(1) of the 1973 Act obliges the court to have regard to the conduct of the parties. There were various decisions, beginning with the Wachtel case in 1974, and the Government agree with the Law Commission that the policy that the present case law achieves should be maintained. The amended section 25(1) is designed to achieve just that effect. The Government are advised and are confident that it will succeed.
The Government are not relying upon advice that has come exclusively from their own advisers. We know that because of our Special Standing Committee procedure. As a Committee we decided to call certain witnesses to advise us. The legal witnesses that we called were at one in this regard. They were the chairman of the Law Commission, Professor Cretney, the law commissioner who was principally responsible for the report, the President of the Family Division, Lord Scarman, and Mr. Joseph Jackson, the chairman of the Family Law Bar Association. They were at one.
Amendment No. 6 is a curtailed improvement of an amendment moved in Committee by the hon. Member for Sedgefield (Mr. Blair). It would have exactly the same effect as is achieved by paragraph (g), but a change of wording would be involved. We would be abandoning a form of words that has received the express approval of the witnesses to whom I have just referred, and substituting different language for it. That seems to be an undesirable thing to do. I do not believe in the wisdom of making a change for the sake of change, when the wording that it is proposed to change has had such influential and confidence-inspiring approval.
I understand the way in which the matter has been put by the hon. Member for Sedgefield. We all agree that conduct should be considered only in an exceptional case, and when it would be inequitable to disregard it. The hon. Gentleman says that if one puts that requirement to the fore


because one is requiring a negative, it is drawn to the attention of the court and of others in a more positive way. I understand that, and if I felt that there was a serious risk of misinterpreting the restructuring of the format of section 25—the introduction of "inequitable" into paragraph (g) — I would be more sympathetic to the amendment. However, I do not believe that there is such a risk. We all know the bits of evidence that relate to this point, so I shall not take up the time of the House in reciting them. Suffice to say, those who have advised us have said that "inequitable" reflects the case law exactly. The effect of that case law is that conduct shall be disregarded, save where disregarding it would cause an ordinary person's sense of justice to be offended. That has been put in various ways, such as where disregarding it would cause an ordinary mortal to throw up his hands and say, "Surely you are not going to disregard the way this husband or wife has misbehaved." However, I hope that I have shown that I understand why the right hon. Gentleman moved the amendment as he did.
Amendment No. 15 would represent a novel departure from the present position. The novelty lies in the fact that it would limit the courts consideration of the conduct of the parties to conduct which related only to the way in which the assets of the parties—and I think, though I am not sure, that means the property and the money of the parties — had been treated. Paragraph (g), which this amendment would alter, has been drafted very carefully to embody in the statute the present state of the law as established by the 1973 Act and precedent.
The amendment would confront the courts with a number of problems. It would change their current practice of not having regard to conduct, except where it would be inequitable not to have regard to it, and would therefore interfere with and run contrary to the Law Commission's view that the current policy of the law should not be changed. Because of the terms in which it is drafted, it would give rise to doubt and uncertainty in the minds of practitioners and members of the judiciary and result in a consequential increase in the number of cases coming before the courts before guidance could be given at appellate level.
The uncertainties to which I refer are the new concepts which the amendment would introduce of "dissipate" and "assets" which are not defined in statute or by precedent, and which provide great scope for argument as to what amounts to conduct which "was calculated to dissipate", precisely what "dissipate" comprehends, and what is included in
the joint or several assets of the parties".
I am afraid that I do not see clear answers to those points.
I am pleased that the amendment of the hon. Member for Torfaen (Mr. Abse) is not an improvement on the provision in new section 25(g). Mr. Jackson pointed out that it is difficult to say what is exceptional. Neither the courts not the profession would be able to say with certainty what sort of conduct should be regarded as exceptional. The Committee members will remember that Mr. Jackson said that as a good trade unionist he would love to have the word "exceptional" in, because that would bring in plenty of work to find out what it means, testing it, and so on, but he could not advise us to put in such a provision. Almost certainly the lawyers would take the view that there had been a change from the present position, which has been established by a long line of appellate decisions, and we would have to start the process

again, until the scope of "exceptional" had been hammered out in the Court of Appeal arid its meaning had been made certain.
The same goes for the words "conduct complained of". Is that conduct complained of during the course of the marriage or since the divorce, or does it mean conduct complained of in the petition'? These are difficult questions that would raise questions of res judicata, and might lead to more petitions being fruitlessly defended to avoid a finding on conduct that could sound in the subsequent dispute over finance. Does it simply mean conduct that is raised in the ancillary proceedings? I do not have unequivocal answers to these intensely boring questions. The last thing that the House should wish to do is to inflict the expense and worry of having them litigated upon our unfortunate constituents. I cannot be more helpful about that amendment.
I move to the great constitutional issue that has burst upon us. Why do we have a Special Standing Committee procedure? I suppose the answer is so that we can be better informed of the nature of the Bill that is being considered. We want to know what it means, and we want to take evidence so that we do not have to take it from Ministers. With all of that I wholly agree.
Why do we have the order that our proceedings should be published? I imagine the answer is because we want the public outside to know the information that has been given to us. With that I wholly agree.
How do we set about getting people to come and give evidence, using the three sittings reserved for that purpose? The Committee corporately considers it would like to call, and it takes the decision corporately as to whom it shall call. That is what this Committee did. Sir John Arnold did not come because I beckoned but because the Committee as a whole invited him to do so—sent for him, in the words of the standing order. I did not recall any opposition to that proposition from the hon. Member for Torfaen, or anybody else, in our first, private sitting.

Mr. Abse: The hon. and learned Gentleman should not be talking about what took place at private meetings. He does not deal with this problem nor attempt to meet it by trying to wash his hands of having participated in, if not instigated, the suggestion that: the President should appear before us.

The Solicitor-General: As the hon. Gentleman has already said that Sir John Arnold came because I invited him and, if I understood him correctly, denied that my hon. Friend the Member for Banbury (Mr. Baldry) had any part in the invitation, I am entitled to say that Sir John Arnold was invited by the Committee.
What did Sir John Arnold do? He answered the questions that we put to him, submitted two written memoranda, in which he dealt with the genesis of the changes that the Bill brings about, and considered the arguments put before the Law Commission and its report. He dealt, because he was asked to do so by us, with the wording of the Bill. I agree with the hon. Member for Torfaen that it was helpful that he did. He gave helpful evidence that was published in due course. If that was helpful evidence for us, it is doubtless helpful evidence for the public. In the course of our later discussions, I was told that the Law Society and other solictors believed that the Bill would require conduct to be gone into much more widely, and money and time would be taken to do this.
It thus seemed to me perfectly proper and helpful to suggest to the Law Society that if its members were really suffering from what I believed to be a misapprehension, it might do well to circulate to them that which the House of Commons had already ordered to be published so that solicitors could make up their own minds whether their fears were likely to be well founded. That seemed a not entirely unreasonable suggestion.
1 am
A great haroosh has now been raised about the independence of the judges having been somehow impugned, but, if that is so, it has been impugned by the Committee in asking the judges to come and help us. For the life of me, I cannot see how that can possibly arise. No one is saying that, by reason of what they said to the Committee, the judges are somehow obliged to determine future cases in a particular manner. That is a gross absurdity and rather insulting to the judges.
If it is argued that no judge should ever express an academic or hypothetical opinion about a matter of law, that rules out a great many judicial textbooks written by people like the vice-chancellor, Sir Robert Megarry, Lord Justice Goff and other extremely distinguished contributors to judicial learning.
Therefore, although I admire the ingenuity of the attack, I am utterly unrepentant of what I have said. With regard to the judges giving evidence to the Committee, I find that nothing has occurred that in any way impugns the vital principle that the judges are entirely independent of the Executive. With respect, therefore, that is my reply.

Mr. John Morris: I distinguished very carefully between any objection to a judge coming to the Committee — I should certainly not object to that — and the utterance of the Solicitor-General inviting the Law Society to circulate the view of a judge to allay any apprehensions — treating the judge's opinion, as it were, as an anticipatory judgment whereby the fears of Law Society members might be allayed. I put the point extreme very carefully indeed, but if the Solicitor-General did not take it wholly on board that may nevertheless have been my fault.
The amendment does not seek change for its own sake. The fact that other words have been considered by the Committee surely does not stop this House from improving the Bill if it feels that that is necessary. Therefore, I invite my right hon. and hon. Friends to divide the House on the amendment.

Question put, That the amendment be made:—

The House divided: Ayes 28, Noes 139.

Division No. 369]
[1.5 am


AYES


Abse, Leo
Haynes, Frank


Banks, Tony (Newham NW)
Hogg, N. (C'nauld &amp; Kilsyth)


Blair, Anthony
Hughes, Simon (Southwark)


Callaghan, Jim (Heyw'd &amp; M)
Kirkwood, Archy


Campbell-Savours, Dale
Madden, Max


Carlile, Alexander (Montg'y)
Meadowcroft, Michael


Cocks, Rt Hon M. (Bristol S.)
Mikardo, Ian


Corbyn, Jeremy
Morris, Rt Hon J. (Aberavon)


Cowans, Harry
Nellist, David


Dixon, Donald
Pike, Peter


Dunwoody, Hon Mrs G.
Richardson, Ms Jo


Harman, Ms Harriet
Skinner, Dennis


Harrison, Rt Hon Walter
Smith, C.(Isl'ton S &amp; F'bury)





Wardell, Gareth (Gower)
Tellers for the Ayes:


Weetch, Ken
Mr. Norman Hogg and Mr. Gerald Bermingham.




NOES


Alexander, Richard
King, Roger (B'ham N'field)


Amess, David
Knight, Gregory (Derby N)


Ashby, David
Knight, Mrs Jill (Edgbaston)


Atkinson, David (B'm'th E)
Knowles, Michael


Baker, Nicholas (N Dorset)
Lang, Ian


Baldry, Anthony
Lawler, Geoffrey


Batiste, Spencer
Leigh, Edward (Gainsbor'gh)


Bellingham, Henry
Lilley, Peter


Benyon, William
Lloyd, Peter, (Fareham)


Berry, Sir Anthony
Lyell, Nicholas


Best, Keith
MacKay, Andrew (Berkshire)


Bevan, David Gilroy
Maclean, David John


Biggs-Davison, Sir John
Major, John


Boscawen, Hon Robert
Malins, Humfrey


Bowden, Gerald (Dulwich)
Mather, Carol


Brandon-Bravo, Martin
Mayhew, Sir Patrick


Bright, Graham
Meyer, Sir Anthony


Brinton, Tim
Moynihan, Hon C.


Brooke, Hon Peter
Murphy, Christopher


Brown, M. (Brigg &amp; Cl'thpes)
Nelson, Anthony


Bruinvels, Peter
Neubert, Michael


Burt, Alistair
Norris, Steven


Carlisle, John (N Luton)
Oppenheim, Philip


Carlisle, Kenneth (Lincoln)
Ottaway, Richard


Cash, William
Page, Richard (Herts SW)


Channon, Rt Hon Paul
Powley, John


Chope, Christopher
Raffan, Keith


Clark, Dr Michael (Rochford)
Ridley, Rt Hon Nicholas


Conway, Derek
Robinson, Mark (N'port W)


Coombs, Simon
Rowe, Andrew


Cope, John
Sackville, Hon Thomas


Couchman, James
Sainsbury, Hon Timothy


Cranborne, Viscount
Sayeed, Jonathan


Currie, Mrs Edwina
Shaw, Sir Michael (Scarb')


Dorrell, Stephen
Shelton, William (Streatham)


Dover, Den
Skeet, T. H. H.


Dunn, Robert
Soames, Hon Nicholas


Durant, Tony
Spencer, Derek


Fallon, Michael
Spicer, Jim (W Dorset)


Favell, Anthony
Stern, Michael


Fenner, Mrs Peggy
Stevens, Lewis (Nuneaton)


Forsyth, Michael (Stirling)
Stevens, Martin (Fulham)


Fox, Marcus
Stewart, Allan (Eastwood)


Franks, Cecil
Stewart, Andrew(Sherwood)


Freeman, Roger
Stradling Thomas, J.


Fry, Peter
Sumberg, David


Gale, Roger
Temple-Morris, Peter


Galley, Roy
Thompson, Donald (Calder V)


Gardiner, George (Reigate)
Thompson, Patrick (N'ich N)


Goodlad, Alastair
Thorne, Neil (Ilford S)


Gow, Ian
Thurnham, Peter


Ground, Patrick
Tracey, Richard


Hamilton, Hon A. (Epsom)
Twinn, Dr Ian


Hamilton, Neil (Tatton)
van Straubenzee, Sir W,


Hargreaves, Kenneth
Wakeham, Rt Hon John


Havers, Rt Hon Sir Michael
Walden, George


Hawksley, Warren
Waller, Gary


Hayward, Robert
Wardle, C. (Bexhill)


Heathcoat-Amory, David
Watson, John


Hind, Kenneth
Watts, John


Holt, Richard
Wells, Bowen (Hertford)


Hooson, Tom
Whitfield, John


Howard, Michael
Whitney, Raymond


Howarth, Alan (Stratf'd-on-A)
Wolfson, Mark


Howarth, Gerald (Cannock)
Wood, Timothy


Hubbard-Miles, Peter
Yeo, Tim


Hunter, Andrew
Young, Sir George (Acton)


Jessel, Toby



Johnson-Smith, Sir Geoffrey
Tellers for the Noes:


Jones, Gwilym (Cardiff N)
Mr. Douglas Hogg and Mr. Tristan Garel-Jones.


Jones, Robert (W Herts)



Key, Robert

Question accordingly negatived

Amendment proposed: No. 8, in page 3, line 30, after `shall', insert
'not have regard to the conduct of the parties unless the conduct complained of is of such an exceptional nature that it would be inequitable to disregard it, but shall'.—[Mr. Abse.]

Amendment negatived.

Ms. Richardson: I beg to move amendment No. 12, in page 4, line 7, leave out
'made by each of the parties'
and insert
'which each of the parties has made or is likely in the foreseeable future to make'.

Mr. Deputy Speaker (Mr. Paul Dean): With this it will be convenient to take the following amendments: No. 13, in page 4, line 9, leave out 'made'.
No. 14, in page 4, line 9, after 'made', insert
`or likely to be made'.
No. 25, in clause 9, page 9, line 25, leave out
`made by each of the parties'
and insert
'which each of the parties has made or is likely in the foreseeable future to make'.
No. 26, in page 9, line 27, leave out 'made'.

Ms. Richardson: The amendments are, in a way, the Solicitor-General's response to a point which I made in Committee, which will clarify the point that we were discussing.

Amendment agreed to.

Mr. Weetch: I beg to move amendment No. 20, in page 4, line 43, after 'party', insert 'had expressly'.
I shall not take long. The Solicitor-General has come through the Bill almost totally unscathed. At this early hour he is in a position of strength, and, as such, he can afford to be generous. Although amendment No. 20 might not seem very important, it raises a very important issue of principle.
The amendment is aimed at ensuring that step-parents are not automatically taken to have assumed financial responsibility for step-children. The unjust position that often occurs is this. A spouse with children by a first marriage is divorced. The children are taken into the second marriage. The children become in effect the step-children of the subsequent spouse, who, in the normal course of events, takes the children into the new family framework.
Little does the step-parent know, however, that should the second marriage break down he or she is likely to be ordered to pay maintenance and thus acquire financial obligations involuntarily and unjustly. One has to add to that the fact that the other natural parent is still alive and may or may not be paying maintenance
Hard cases make bad law, but some of the cases that may arise and have arisen—I have much correspondence to justify my saying that—need to be quoted. I shall quote briefly from a letter in my files. I know of other cases. A divorced man was given the custody of three children, and then he remarried. His second wife brought two children to the marriage. She was already being maintained by her first husband. The marriage lasted a matter of months and broke up. The man was required by law to pay maintenance for his step-children as well as to maintain three children of his own. The obligations left him destitute, as he was also paying regular maintenance to his first wife.
The step-parent was keeping his own children, arid maintaining his step-children, who were also being maintained by the wife's first husband. He was also maintaining his former wife. The DHSS had its hand in his pocket, too, on the doctrine of saving the public purse. In my view, such a situation is intolerable and unjust.
It is a general proposition in law that no one is forced to take on financial obligations for children who are not his or her own. Maintenance matters are an exception to that. Even if a second marriage lasts for a minimal time, financial obligations for step-children are assumed unless an express disclaimer is made, deriving from case law.
I submit that that is inequitable, and I submit to the House that the amendment would rectify the position and make it more fair. By inserting the word "expressly", the onus is shifted. There will be a general assumption that the law is the same everywhere with regard to step-children. If there is an exception in this area of public life, it must be expressly intentioned.
Forty per cent. of second marriages break down. There is a high level of breakdown and the problems of the financial obligations of step-children will increase. Therefore, I invite the Solicitor-General to accept the amendment, to apply justice to a difficult situation.

The Solicitor-General: The fact that I have come through unscathed, as the hon. Member for Ipswich (Mr. Weetch) said, is not a reflection on the cogency and conciseness of the advocacy that he has invariably brought in his amendments. We have not been able to accept many Opposition amendments, although we have just accepted two—and I hope that that will not be overlooked. We could not accept many, as I am afraid that they would have damaged the Bill.
The purpose of the amendment is to narrow the liability of either party to make provision for a child of the family who is not that party's own child. The court, in considering whether to make an order against a party in favour of such a child, is required to have regard, among other things, to whether that party had assumed any responsibility for the child's maintenance. It has to look to that.
The words to be inserted by the amendment—"had expressly"—would, by inference, indicate to the court that it should be reluctant to make an order against a party unless he had explicitly, whether orally or in writing, assumed responsibility for the child's maintenance. The effect of inserting the words, "had expressly", would be to eliminate the conduct of the party towards the child as a test of whether he had assumed any responsibility for that child's maintenance. Instead, the court would have to consider whether anything that the party had said or written was sufficiently explicit to show that responsibility for the child's maintenance had been expressly assumed. If I put it simply like that, one sees how difficult and uncertain it would be, and what sort of investigations would take place, as to whether something had been said, what exactly it meant, what wer the circumstances, and so on.
The provision applies only to a child who has been treated by both spouses as a child of their family, but the court would have to consider, not what course of conduct the prospective payer had pursued over the years with respect to the child, but evidence of what the party had said or written about assuming responsibility. It is much more


important that we stick to the present rule that the court has to see whether there has been an assumption of responsibility. It looks to the fact, not to the form.
I should like to accept one of the hon. Gentleman's amendments, but the result of this amendment would, in many cases, be that a child who was dependent upon his step-father and had looked upon him as a father figure might be bereft of support on the breakdown of the relationship between his natural parent and his step-parent. One has only to say that for it to become apparent that that would not be a good thing at all. It is for that reason alone that, I fear, I must say once more that I cannot advise the House to accept the amendment.

Mr. Weetch: Disappointed as I am with that answer, I thank the Solicitor-General for his argument. Although I do not accept it, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Alex Carlile: I beg to move amendment No. 22, in page 5, line 40, at end add—
'(4) Save by agreement between the parties the provisions of this section shall not apply in any case where there remain minor children of the family in the care of either party to the marriage'

Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments:
No. 23, in clause 5, page 6, leave out lines 20 to 27.
No. 24, in clause 6, page 6, line 43, at end insert—
'(2A) After subsection (6) there shall be inserted the following subsection:—
(6A) Where a periodical payments or secured periodical payments order in favour of a party to a marriage on or after the grant of a decree of divorce or nullity of marriage is made for a fixed term an application under subsection (1) of this section may be made at any time during the subsistence of the order and for a period of one year after the date specified in the order for its determination.".'.

Mr. Carlile: New section 25A has caused a good deal of panic, particularly among divorced women and women who are single parents. It has been characterised — probably, I agree, wrongly—as a section that will be a charter for husbands to avoid future responsibilities.
I can put the argument for amendment No. 22 extremely briefly. It needs to be spelt out in new section 25A that there should not be clean break orders in cases where there remain minor children of the family. It needs to be spelt out so that those who have expressed great anxiety and near panic about the new section know that their panic is misplaced.

Ms. Harriet Harman: The clean break principle is directed at stamping out the so-called alimony drone. At the root of these proposals is the idea that somewhere there is a creature who marries a man and, after a brief marriage, gets a divorce and then has a meal ticket for life. The clean break principle is designed to permit the husband to get a clean break from such an alimony drone and not have to continue paying maintenance.
The problem with all this is that the alimony drone is a mythical creature. First, let us consider what the Lord Chancellor knows about the alimony drone and then see what we know about this myth, about the non-existence of such a person. The Lord Chancellor has admitted that

he does not know that facts about the financial consequences of divorce. In a letter to me dated 2 December 1983 he wrote:
My officials will shortly be considering proposals by the Social Survey Division of the Office of Population Censuses and Surveys for a feasibility study on research into the financial consequences of divorce.
He was not, therefore, announcing a full survey; just a feasibility study into a research project.
This Bill will change the divorce laws in respect of maintenance and the financial consequences of the breakdown of marriage on the basis of prejudice rather than on information about what actually happens to the two parties financially when a marriage breaks down. It is wrong that we should be asked to include this clean break clause in the Bill when the Lord Chancellor does not know what the effects of it will be. He cannot know the effects of it because, as I have shown, he does not know what the current situation is. He admitted in his letter that
information about the financial circumstances of divorced men and women who are caring for children, and of divorced women whose children are no longer dependent, is lacking.
He went on:
I hope that it will prove possible to fill these gaps in our knowledge, and others, with the large-scale survey which it is envisaged that the feasibility study by the OPCS may lead to.
It is deplorable that the Lord Chancellor should be promoting legislation containing this clause, which could have a great effect on first wives, when he does not know the background against which we are legislating.
As the Lord Chancellor admitted, not much research has been done on this subject, and the Law Commission drew attention to that fact. When, therefore, I received letters from husbands saying that they felt that their first wives were alimony drones, I undertook my own research project. I sent out a questionnaire asking how long the first marriage had lasted, whether the first wife had remarried, how many children there were of the marriage and whether those children were dependent. I wanted to obtain more information about those who had written to me, remembering that they were supporting the Bill.
The questionnaire was circulated to more people than those who had written to me asking me to support the measure. It was circulated by an organisation called Campaign for Justice in Divorce, which supports the aim of the Bill to stamp out the odd alimony drone. Basically, therefore, the questionnaire went to husbands who felt that the Bill would help them and give them a clean break from their first wives.
I did an analysis of the first 100 answers I received from the questionnaire — about 130 were returned — which revealed that even among those who were calling for freedom from the alimony drone and a clean break, I could not find one example of an alimony drone from my research. I found that most of the husbands wanting a clean break had children as a result of long-standing marriages, and I will give some of the findings.
I found that 75 per cent. of the marriages had lasted for more than 15 years, which could hardly be described as brief marriages; that 56 per cent. had lasted for more than 20 years; and that one had lasted for as long as 48 years. Are we being told that after 48 years of marriage—and, in that case, four children—there should be a clean break? I found that 70 per cent. of the marriages had two or more children; that 59 per cent. of husbands had married again and that only 4 per cent. of the first wives had remarried.
The Bill's supporters claim that it is necessary to end the so-called injustice of an ex-husband having to pay maintenance to an ex-wife after a brief and childless marriage. But not one of the 100 supporters of the Bill involved in that research project anywhere near fitted the circumstances for which a clean break is supposedly necessary. My research shows that those who are pressing for the Bill will not be helped by it unless the Bill cuts maintenance for ex-wives who have spent many years at home not working because they are bringing up children and whose earning power has therefore been permanently reduced.
1.30 am
The Bill will not help those who want it, or it will harm those who should not be harmed. I believe that the clean break is unfair even when there are no longer dependent children. A Government survey of only the week before last showed that bringing up children impairs a woman's earning power by 25 per cent. for the whole of her working life, not just for the time that she is bringing up those children.
First, there should be equality in the home with equal responsibility for bringing up children, and equality in the job market with equal opportunity and earnings for men and women, and then the Government should come to us asking for a clean break.

The Attorney-General: We were delighted to hear from the hon. Member for Peckham (Ms. Harman), alhough I do not believe that her remarks were directed to the amendment. Her speech might perhaps have been more appropriate on Third Reading.
The amendments, which have carefully been grouped together, deal, in effect, with guidance on the exercise of the court's discretion in making financial orders under new section 25A and the power conferred by subsection (3), to order that an application for periodical payment should be dismissed wihout the agreement of the applicant.
The first point that must be borne in mind about section 25A is that the court will have decided to make an order for finacial relief, and it will have done so having already given consideration to the welfare of any child of the family. Accordingly, when the court looks at section 25A it must have it in mind to make a order for financial relief in favour of a party to the marriage, and there can be no question of the interests of any child of the family being overlooked.
In considering the amendments to clause 3, the question is whether the fact that a party has the care of a child of the family should exclude the duty of the court even to consider whether it is appropriate that the financial obligations of each party towards the other should be terminated as soon after the grant of the decree as the court considers just and equitable.
If the hon. Members speaking to these amendments wish the court to be prevented from ordering a clean break between the parties when minor children are involved, the amendments should say so clearly. As I have explained, they do not. The real debate is whether the clean break should always be excluded in these circumstances. I am sure that the answer to this must be no. There are cases where it would be appropriate to impose a clean break between the parties, notwithstanding the fact that there are children under the age of 18 involved. The cases of Minton, decided in 1979, and Dunford, decided in 1980, are examples of where the court may quite appropriately

order no continuing financial provision between the parties, while making orders for the payment of maintenance to the children of the family.
I can illustrate the type of circumstances when a clean break between the parties would be appropriate by a hypothetical example. May we imagine a woman who is a general practitioner earning £22,000 a year, married to a marketing director of 42 with an income of £28,000 a year? Each has only £2,000 or £3,000 in capital savings, but they jointly own a matrimonial home. They have two children, a girl of 13 and a boy of 15. I could well envisage a court in such a case ordering some transfer of property in the matrimonial home perhaps, but not requiring the parent who is not caring for the children to make any order for periodical payments in respect of the parent who is. There would, of course, be orders in respect of the children, but section 25A, and these amendments, are not concerned with orders in respect of children.
It may well be appropriate in cases where the husband has substantial assets for him to provide for the maintenance of the wife, and perhaps the children too, by way of the payment of large sums. In such cases it is not uncommon for there to be a transfer of the matrimonial home together with a lump sum payment but no order for periodical payments.
The important point to remember about section 25A is that the court is directed to consider termination of financial obligations and fixed-term orders only when it would be appropriate to do so—that is, when such an order can be made without undue hardship to the party. The hon. Member for Ipswich (Mr. Weetch) made that point in Committee. I agree with him that it is vital not to overlook the importance of those words.
I appreciate the purpose of the amendment, which is to cater for an unforeseen contingency. I doubt whether provisions along the lines of that in the amendment would be used in practice, but my main objection to the amendment is one of principle. It would not help the parties to achieve the desirable aim of securing financial independence. Alternatively, it would erode the value to the courts of the power to make orders of limited duration. and therefore prolong the bitterness and antagonism between the parties, which arises from wrangles of continuing financial ties. The Bill seeks to avoid that.

Mr. Alex Carlile: The Attorney-General has carefully and fairly dealt with his objections to amendment No. 22. However, with respect, he is wrong about its meaning and effect. It excludes clean-break settlements, except where there is an agreement that the court should make a clean-break order in cases where there are minor children of the family. He is right in saying that it is intended to deal with possible contingencies even in the sort of case of which he gave an example, but what happens if the general practitioner and mother become disabled? She will then receive, in addition to whatever benefits she may get, only the maintenance that is being paid for the child. The Liberal party wishes to avoid such a consequence. It happens more often than one imagines.
However, the matter was considered carefully, and I do not wish to press the matter to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9

ORDERS FOR FINANCIAL RELIEF MADE BY MAGISTRATES' COURTS IN MATRIMONIAL PROCEEDINGS

Amendments made: No 25, in page 9, line 25, leave out
'made by each of the parties'
and insert
'which each of the parties has made or is likely in the foreseeable future to make'.

No. 26, in page 9, line 27, leave out 'inade'.—[Mr. John Morris.]

Clause 33

JURISDICTION OF COUNTY COURTS IN MATRIMONIAL CAUSES

Amendment made: No. 28, in page 29, line 34, leave out from 'or' to end of line 35 and insert
section 41 of the County Courts Act 1984 (transfer to High Court by order of the High Court).'.—[The Solicitor-General.]

Clause 38

TRANSFER OF FAMILY PROCEEDINGS FROM HIGH COURT TO COUNTY COURT

Amendment made: No. 29, in page 31, line 10, leave
out from 'or' to end of line 12 and insert
'section 41 of the County Courts Act 1984 (transfer to High Court by order of High Court).'.—[The Solicitor-General.]

Clause 40

FAMILY PROCEEDINGS RULES

Amendments made: No. 30, in page 32, line 8, leave out `1959' and insert '1984'.

No. 32, in page 32, line 36, leave out '1959' and insert `1984'.—[The Solicitor-General.]

Schedule 1

MINOR AND CONSEQUENTIAL AMENDMENTS

Amendments made: No. 41, in page 38, leave out lines 3 to 18.

No. 43, in page 40, line 22, leave out 'section 102 of the County Courts Act 1959' and insert
'section 75 of the County Courts Act 1984'.

No. 44, in page 40, line 35, leave out 'section 102 of the County Courts Act 1959' and insert
`section 75 of the County Courts Act 1984'.

No. 45, in page 42, line 34, at end insert—

'County Courts Act 1984 (c. 00)

32.In section 40 of the County Courts Act 1984, the following shall be substituted for subsection (3)—
(3) This section does not apply to proceedings which are family proceedings within the meaning of Part V of the Matrimonial and Family Proceedings Act 1984.

33.In section 41 of that Act there shall be added at the end of subsection (2) the words "but shall be exercised in relation to family proceedings (within the meaning of Part V of the Matrimonial and Family Proceedins Act 1984) in accordance with any directions given under section 37 of that Act (directions as to distribution and transfer of family business and proceedings)."

34.In section 42(3) of that Act for the words after "other than" there shall be substituted the words "proceedings which are family proceedings within the meaning of Part V of the Matrimonial and Family Proceedings Act 1984.".'. — [The Solicitor-General.]

Schedule 3

REPEALS

Amendments made: No. 52, in page 44, leave out lines 4 and 5.

No. 54, in page 44, line 31, at end insert—

'1984 c. 00
County Courts Act 1984
In section 147(1), the definition of "matrimonial cause".'.

—[The Solicitor-General.]

The Attorney-General: I beg to move, That the Bill be now read the Third time.
Last autumn the New Law Journal, in a leading article, published the following passage
The myths and the exaggerations are already forming around the Matrimonial and Family Proceedings Bill and need to be dispelled. The reality is that the Bill is not an assault on the family or the institution of marriage. It does not presage the return of fault-based divorce, nor would its enactment create a new class of destitute jobless first wives on the breadline while their husbands' second families live in luxury. Indeed the practical effect of the new measure, when implemented, is likely to disappoint, or alternatively assuage the fears of those who expect it to introduce dramatic changes in the way the courts deal with the financial aftermath of divorce. The Bill brings together proposals of three Law Commission and one Scottish Law Commission reports, and adds a dash of procedure inspired by the Lord Chancellor's Department, not least to attempt to unravel the jurisdictional problems that Richards v.Richards revealed.
I hope that the careful consideration that has been given to the Bill in the other place, in Committee and in the House has dispelled those myths.
I thank all right hon. and hon. Members who have played such a major part in our consideration of the Bill. Their work has been rewarded in the amendments made to the Bill. The debates in the House and in the other place greatly improved the measure, which will soon receive Royal Assent.
I also wish to comment on the use of the Special Standing Committee procedure. This power is rarely used, but its use in connection with this Bill was obviously enormously valuable to the Committee and to all those who read its proceedings. Not only did it enable the Committee to be better informed so that it could carry out its responsibilities, but I have no doubt that it speeded debates in Committee.
I also pay tribute to the Opposition for the responsible way in which they have dealt with this non-partisan measure. I congratulate my hon. and learned Friend the Solicitor-General on the skilful, compassionate and courteous way in which he navigated the Bill through the minefields that are always creatd by legislation that involves reforms.
I hope that the House will give the Bill its Third Reading.

Mr. John Morris: Initially, the Bill caused great concern in many parts of the House. Some women believed that they were hard done by, and some men had exaggerated hopes of what they could gain from it. Many of those fears were removed by sending the Bill to the Special Standing Committee. When the idea of doing so was canvassed, it was welcomed by my right hon. and hon. Friends, and we greatly appreciated the help of the Solicitor-General in Committee and in all our proceedings.


I thank my hon. Friend the Member for Barking (Ms Richardson) and my other hon. Friends who bore the heat of the day in Committee; they left no stone unturned.
The Opposition had a free vote on the Bill on Second Reading, as they will have on Third Reading. The concrete way to allay the fears which I believe still exist is for the Bill to be monitored during the next five years. If it fails, and some of those fears are proved right, it will inevitably be necessary to amend the Act at that stage.

Mr. Alex Carlile: The alliance has the greatest misgivings about the Bill, not so much for what it does, as for what it fails to do. We believe that it is wrong for matrimonial law, which is so greatly in need of wholesale reform—matrimonial procedure especially needs almost complete revision—to be dealt with in this piecemeal way. It was suggested earlier in the debate that, in one respect at least, there was no time to consider the issues properly, but the fact is that many of the issues which lead one to the conclusion that matrimonial law is desperately in need of wide reform have been debated for many years and researched fully.
On Second Reading I referred to the report of the Finer commission, which was published 10 years ago, recommending fundamental changes in family law and, above all, making the strong and cogent point that it is time to look outside the adversarial procedure that has been traditional in family law proceedings, and try to aim at something new and different that is designed to introduce conciliation as the first consideration in disputes — conciliation, not reconciliation.
The time is long overdue for a system of family courts to be set up, combining the whole family law and domestic jurisdiction. It could and should have been done by this Bill. In that respect the Government have failed in the Bill.

Mr. Abse: I shall take greater care to try to keep within the limits of what should be a Third Reading speech; I observed that you were getting restless, Mr. Deputy Speaker. However, I cannot refrain from saying that the very features of the Bill highlight areas which require attention. It is abundantly clear that one of the best effects of the Bill is that it has directed attention to the fact that we are dealing with problems that need new conciliation procedures, family courts and a real regard to the large mass of women who will not be affected in any way by the Bill because they are still dependent upon inadequate state security.
For my part, I believe that on balance the Bill is of limited benefit in so far as it substitutes new guidelines for those who have to adjudicate upon requests for financial aid, following upon divorce. It substitutes rational guidelines for irrational guidelines.
Inevitably we have had a great deal of tumult during our debates. It would have been wrong if even to the end there had not been some quite fierce exchanges. The Solicitor-General will realise that it is the duty of an Opposition, particularly when they are comparatively small in numbers, to alert the nation as best they can to what they regard as blemishes within a Bill.
I wish to thank all hon. Members on both sides of the House who, through the unofficial divorce committee of the House, so persistently asked for part II. I am grateful for the fact that at the very end we had the Lord

Chancellor, with all the zeal of a proselyte, pursuing partII and having as his aide the Solicitor-General, to whom I give special thanks for the courtesy, constant vigilance and care that he gave to every amendment, even those which were most extravagant or irrational.

Question put, That the Bill be now read the third time:—

The House divided: Ayes 119, Noes 16.

Division No. 370]
[1.48am


AYES


Abse, Leo
Jones, Gwilym (Cardiff N)


Alexander, Richard
Jones, Robert (W Herts)


Ashby, David
Key, Robert


Atkinson, David (B'm'th E)
King, Roger (B'ham N field)


Baker, Nicholas (N Dorset)
Knight, Gregory (Derby N)


Baldry, Anthony
Knowles, Michael


Batiste, Spencer
Lang, Ian


Bellingham, Henry
Lawler, Geoffrey


Benyon, William
Leigh, Edward (Gainsbor'gh)


Berry, Sir Anthony
Lilley, Peter


Best, Keith
Lloyd, Peter, (Fareham)


Bevan, David Gilroy
Lyell, Nicholas


Boscawen, Hon Robert
Maclean, David John


Bowden, Gerald (Dulwich)
Major, John


Brandon-Bravo, Martin
Malins, Humfrey


Brinton, Tim
Mather, Carol


Brooke, Hon Peter
Mayhew, Sir Patrick


Brown, M. (Brigg &amp; Cl'thpes)
Moynihan, Hon C.


Bruinvels, Peter
Norris, Steven


Carlisle, Kenneth (Lincoln)
Oppenheim, Philip


Cash, William
Ottaway, Richard


Channon, Rt Hon Paul
Page, Richard (Herts SW)


Chope, Christopher
Powley, John


Clark, Dr Michael (Rochford)
Raffan, Keith


Conway, Derek
Ridley, Rt Hon Nicholas


Coombs, Simon
Robinson, Mark (N'port W)


Cope, John
Rowe, Andrew


Couchman, James
Sackville, Hon Thomas


Cranborne, Viscount
Sainsbury, Hon Timothy


Currie, Mrs Edwina
Sayeed, Jonathan


Dorrell, Stephen
Shelton, William (Streatham)


Dover, Den
Soames, Hon Nicholas


Durant, Tony
Spencer, Derek


Fallon, Michael
Stern, Michael


Favell, Anthony
Stevens, Lewis (Nuneaton)


Fenner, Mrs Peggy
Stevens, Martin (Fulham)


Forsyth, Michael (Stirling)
Stewart, Allan (Eastwood)


Fox, Marcus
Stewart, Andrew (Sherwood)


Franks, Cecil
Sumberg, David


Freeman, Roger
Thompson, Donald (Calder V)


Gale, Roger
Thompson, Patrick (N'ich N)


Galley, Roy
Thurnham, Peter


Gardiner, George (Reigate)
Tracey, Richard


Garel-Jones, Tristan
Twinn, Dr Ian


Goodlad, Alastair
van Straubenzee, Sir W.


Gow, Ian
Wakeham, Rt Hon John


Ground, Patrick
Walden, George


Hamilton, Neil (Tatton)
Waller, Gary


Havers, Rt Hon Sir Michael
Wardle, C. (Bexhill)


Hawksley, Warren
Watson, John


Hayward, Robert
Watts, John


Heathcoat-Amory, David
Whitfield, John


Hind, Kenneth
Whitney, Raymond


Hogg, Hon Douglas (Gr'th'm)
Wolfson, Mark


Holt, Richard
Wood, Timothy


Hooson, Tom
Yeo, Tim


Howard, Michael
Young, Sir George (Acton)


Howarth, Alan (Stratf'd-on-A)



Howarth, Gerald (Cannock)
Tellers for the Ayes:


Hubbard-Miles, Peter
Mr. Michael Neubert and Mr. Archie Hamilton.


Hunter, Andrew



Jessel, Toby





NOES


Banks, Tony (Newham NW)
Dunwoody, Hon Mrs G.


Campbell-Savours, Dale
Harman, Ms Harriet


Carlile, Alexander (Montg'y)
Harrison, Rt Hon Walter






Hughes, Simon (Southwark)
Richardson, Ms Jo


Kirkwood, Archy
Skinner, Dennis


Madden, Max
Smith, C.(Isl'ton S &amp; F'bury)


Meadowcroft, Michael



Mikardo, Ian
Tellers for the Noes:


Nellist, David
Mr. Tony Blair and Mr. Jeremy Corbyn.


Pike, Peter

Question accordingly agreed to.

Bill read the Third time, and passed, with amendments.

BUSINESS OF THE HOUSE

Ordered,
That, at this day's sitting, Standing Order No. 70 (Public bills relating exclusively to Scotland) shall apply to proceedings on the Roads (Scotland) Bill [Lords] with the substitution of the words 'Committee of the whole House' for the words 'Scottish Standing Committee' in paragraphs (4) and (5) of the Standing Order.—[Mr. Lang.]

ROADS (SCOTLAND) BILL [LORDS]

Order for Second Reading read.

Motion made, and Question put forthwith, pursuant to Standing Order No. 70 (Public Bills relating exclusively to Scotland), That the Bill be committed to a Committee of the whole House.—[Mr. Lang.]

Question agreed to.

Committee this day.

Thornton View Hospital

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Lang.]

Mr. Max Madden: It was 10 April, just a few weeks before the local elections, that the Minister for Health announced that Thornton View hospital in Bradford was to close and that Shipley hospital was to remain open as a community geriatric unit and not as a community hospital. The Minister's decision to close Thornton View hospital was bitterly resented by the people of Bradford. Support for the hospital has been magnificent from the relatives of the elderly patients who praise the care that is given by the hospital, and from the staff and their supporters, who, since last August, have occupied the hospital and mounted a round-the-clock picket to ensure that patients are not removed.
In Shipley, there has been mounting concern after the initial reaction of pleasure that the hospital had been saved. The Minister's decision to close Thornton View hospital, which, in his own words, provides
a caring and homely environment much appreciated by the patients
and to keep Shipley hospital, but to change it into a community geriatric hospital, came as a considerable surprise. Surprise, however, turned into astonishment at the end of May, when confidential minutes of a meeting between a deputation from Bradford district health authority and members of the Yorkshire regional health authority were leaked. They revealed that
the DHA had considered the possibility of redesignating the hospital for geriatric use, but it had been concluded that it would not even be possible to achieve the RHA's minimum standards for the care of elderly patients within the confines of Shipley Hospital and that the facilities would be worse than currently available in other geriatric hospitals within the District.
Yesterday, Bradford district health authority considered a motion that noted the district health authority's view that it would be impossible to achieve the region's minimum standards for the care of the elderly at Shipley, that the cost of upgrading Shipley hospital was unkown, that the projections for the elderly population had been underestimated previously, and that the Minister's decision would result in a net loss of 46 geriatric beds in Bradford. The motion concluded by calling
Upon the Minister to fully explain and reconsider his decision".
It was lost by just seven votes to six. The district health authority, which was previously in favour of closing both hospitals on the ground of economy, came within an ace of joining the many other people in Bradford who are in favour of keeping open Thornton View hospital.
In Bradford, 30,000 people signed a petition that was presented to the DHSS, urging that Thornton View hospital be kept open. It has the support of Bradford community health council, Bradford city council, the three political groups represented on it, and the relatives of patients. The hospital has been supported and visited by the leader of the Labour party, several members of the shadow Cabinet, the general secretaries of the health unions—the Confederation of Health Service Employees and the National Union of Public Employees — and many other individuals and organisations.
An early-day motion signed by more than 100 Labour members, urging that the hospital should remain open, has been on the Order Paper for several months. A large


deputation representing all these viewpoints and others met the Under-Secretary of State in January, and presented an extremely powerful case for the hospital staying open. The members of that deputation were very disappointed, as I was, that Ministers were unable to accept several invitations that were extended to them to visit both hospitals before they announced their decision. I, and others, were extremely disappointed that those visits were not made, because we felt that it was vital that Ministers should see for themselves and talk to those who directly support those hospitals, so that they could ascertain the views and strength of feeling that exists in Bradford over the future of both of those hospitals.
We are entitled to ask why the Minister decided to announce the closure of Thornton View hospital, which, to use his words again, has provided
a caring and homely environment much appreciated by the patients
Why did the Minister decide to change Shipley hospital from a community hospital into a community geriatric unit? What commonsense, clinical or compassionate reasons were in the Minister's mind, given the advice that I assume that he was given last July by the Bradford district health authority—whose chairperson is a Conservative county councillor living in Shipley—that facilities at Shipley would be worse than currently available in other geriatric hospitals within the district?
If we need to inquire into those reasons—reasons that were in the Minister's mind—we find an intriguing explanation in an article in the New Statesman on 3 June,written by Phil Cohen, in which he wrote:
The government was warned by local Tory MP Marcus Fox of a widespread grassroots revolt which would have endangered his seat if Shipley closed. Leafy Shipley, with its large detached houses, is a stronghold of the rich and middle classes. Thornton View, however, is the poorest constituency in Bradford—a Labour held seat—and has the highest immigrant population.
Dr. Clive Tedd, a GP who serviced the 30-bed GP hospital, said: 'The Minister knew he would lose a Conservative MP at the next election. I was secretary of one of the wards of the local Conservative Association and it was made quite clear to me that was what would happen. I think Mr. Clarke is happy to see Thornton View close because the mixture of people trying to keep it open is totally different. It is seen as trade unionists, NUPE members and to a lesser extent relations of elderly patients'.
That was the view of an active member of the Conservative party.
Yesterday, the chairman of the Bradford district health authority was unable to say what sort of community geriatric unit Shipley hospital would become. He has been quoted as saying that all that was required was the addition of a toilet and a day room. Many of us found that an unconvincing explanation of the required facilities at Shipley hospital. Yesterday, it was also announced that the hospital's attic would be required to be brought into use.
No clear guarantee was given at the meeting that the beds at Shipley would become long-stay geriatric beds.Indeed, a disbelieving group of Bradford people attending the meeting were told that there was no one on the geriatric waiting list in Bradford. If Thornton View closes, and even if large amounts of money are spent on bringing Shipley hospital up to standard, there will be a net loss to the district of 46 geriatric beds.
Elderly people—and the number of elderly people over 85 in Bradford will go up by more than a third in the next 20 years, and by more than 77 per cent. in the Yorkshire region in the same period—are in urgent need of residential hospital care. Bradford's social services are

under enormous pressure, and that is not helped by tuts in rate support grant and threats of other action by the Government to reduce the finances available to the city.
The flourishing private nursing home sector in Bradford—heavily subsidised by the taxpayer—is clear evidence of the increasing need for care for the elderly. As beds in places such as Thornton View are lost, it makes the provision for the elderly, especially those who do not have much money or well-off relatives, that much harder. As hospitals close, as council homes and services are axed or cut, it means more elderly people are compelled to seek help in their homes, with relatives living with or visiting them or having to go to live with relatives. Such community care imposes severe and unnecessary strains and sacrifices on wives, daughters, mothers and sisters. It is women who are paying the cost in physical, emotional and financial terms for the political philosophy of this Government, which dictates that welfare services must be cut, and the choice of care diminished to those whose purses or wallets are not fat enough to provide private care.
I am grateful to the Minister for his reception of the deputation in January, but I must tell him that, as I speak, there are pickets at Thornton View hospital, and the occupation will continue. Only two weeks ago, staff voted overwhelmingly to continue the occupation, and there is no way that they will allow patients to be removed from the hospital. With thousands of unemployed in Bradford and thousands of people living in deepening poverty, an epidemic of dysentery — a disease of poverty — now shows the depth of poverty in the area. In those circumstances, the loss of arty public medical facility is unacceptable and will not be tolerated. Bradford urgently needs more help. It needs more resources to give our people better health care, better housing, better education, more jobs and some hope. The elderly, who created the wealth in the past, are clearly entitled to an increasing share of present-day resources to ensure that in their remaining years they receive the best possible care that our supposedly civilised society can give them.
Closing Thornton View hospital is not in the best interests of the elderly people of Bradford. No explanation has been given to the people of Bradford which might justify the closure of that hospital or the translation of Shipley hospital from a community hospital to a geriatric unit. I have to say that the stench of corruption hangs over the Minister's decision. I say that with considerable regret, but it is the view of many people in the city. That is the conclusion that many people have been forced to reach after the series of events which occurred both before and after the Minister's decision of 10 April this year.
The Minister can remove that stench of corruption by announcing today that all the decisions will be urgently reconsidered and by announcing in the very near future that he has no plans to close Thornton View hospital but that that hospital will be kept open and that Shipley hospital will remain a community hospital as the citizens of Shipley wish. That is the obligation facing the Minister today. He has a clear opportunity to reassure the people of Bradford that these badly needed medical facilities will be reprieved. I appeal to him to tell us as clearly and unequivocally as possible that Thornton View hospital will be kept open and that Shipley hospital will continue in the role that it has performed hitherto.
I hope that the Minister can see his way to making that clear commitment today. If he cannot do that, I am afraid that the great concern that has existed since the occupation


began last August will continue and intensify. No one, including the district health authority, is satisified with the explanations given so far, and I join those who pressed the health authority yesterday to call upon the Minister to reconsider his decision. I hope that he will do that and that he will announce that intention today.

Mr. Marcus Fox: rose—

Mr. Deputy Speaker (Mr. Paul Dean): Order. Does the hon. Gentleman have the permission of the hon. Member for Bradford, West (Mr. Madden) and of the Minister to intervene?

Mr. Fox: I wrote asking that I should be given a minute.

Mr. Madden: I am happy for the hon. Gentleman to contribute.

Mr. Fox: I take an exception to the hon. Member for Bradford West (Mr. Madden) devoting so much time to the affairs of Shipley. He is a newcomer to Bradford, never mind Shipley, and he has no right to speak for my constituents, who are delighted at the Minister's decision to keep our hospital open. It is not being changed from a community hospital into a geriatric unit. It maintains most of the services that it had before, but the beds will be better used. We wanted to keep a community hospital, we have achieved that aim, and we are grateful.
It is also ludicrous in the extreme for the hon. Gentleman to quote extracts suggesting that my seat is marginal when I have a majority of 11,400.
Thornton View hospital really should close. Half of it was closed in the 1960s. Those of us who have spent our lives in Yorkshire and in the area around Bradford in particular know a great deal more about these matters than the newcomer who now represents Bradford, West. The hon. Gentleman is far more at home down here in the south and as ex-director of the Labour party publicity machine. His Adjournment debate today shows exactly what he stands for

The Parliamentary Under-Secretary of State for Health and Social Security (Mr. John Patten): I am grateful to my hon. Friend the Member for Shipley (Mr. Fox) for speaking with characteristic force about these matters. I listened with sorrow to some of the remarks of the hon. Member for Bradford, West (Mr. Madden) about Shipley and some of the allegations about actions taken by my right hon. and learned Friend the Minister for Health and myself, and I utterly reject those allegations.
I cannot oblige the hon. Member for Bradford, West. Neither I nor my right hon. and learned Friend the Minister for Health intend to reopen a decision that has been properly taken, the reasons for which have been clearly and properly promulgated. If the hon. Gentleman or his constituents want to know why the decisions about the Thornton View and Shipley hospitals were taken in that form by my right hon. and learned Friend, they need go no further than the letter in which my right hon. and learned Friend announced his decision.
It is unfortunate that the title of the debate and some, although not all, of the hon. Gentleman's powerful speech, reflecting his strong feelings about this issue—I respect those feelings—were concerned with the future

of Thornton View hospital. The modern Health Service is concerned, not with buildings, but with patients—the best arrangements for the present and potential patients of Thornton View hospital and elsewhere in the district. Those are the people about whom we should be concerned—not the future of any particular building in Yorkshire. We should properly be concerned also with the future of the people who work in the hospital. I appreciate the hon. Gentleman's strong views on that matter.
I shall make three pledges about the hospital, its patients and those who work in it. First, as the hon. Gentleman knows, no patient has yet moved from Thornton View hospital, nor will any patient be moved until it is absolutely clear what pattern of moves, determined in the light of the individual needs of patients, will be in the patient's best interests. I know that the district health authority will work to those ends.
My second pledge refers to the staff. All permanent staff working at Thornton View hospital will be offered alternative employment. I repeat: all permanent staff working at the hospital will be offered alternative employment. It is important for those in Bradford, however strongly they feel about the future of Thornton View hospital and its patients, to realise that that is the fact of the matter.
The hon. Member for Bradford, West spoke often and freely about Shipley hospital, which is in the constituency of my hon. Friend the Member for Shipley. My third pledge concerns nursing staff at that hospital, and I hope that my hon. Friend will take my remarks back to his constituents. The pledge is that nursing staff at the Shipley hospital will qualify in future for what is known as a geriatric lead payment when the beds are redesignated. That is an important point for those who work so hard at Shipley hospital.
I do not want to debate tonight the rights and wrongs of the occupation of hospitals. The hon. Member for Bradford, West supports such a move. I believe that is totally wrong, but it is counter-productive for the House to begin tonight to debate the rights and wrongs of whether people should occupy NHS property or any other form of property in the pursuit of their aims.
I do not intend to do more than make passing reference to what I believe was a totally misplaced Labour party political broadcast which featured Thornton View hospital and specifically suggested that the closure of the hospital would cause its residents to be turned out on to the streets. That is disgraceful. By all means fight the political argument fairly, but it is wrong to make completely unfounded and unsupportable allegations about what might happen to individual elderly people, causing them and their relatives great upset.
I ask the hon. Gentleman to do four things tonight. First, I ask him to condemn, with me, the numerous cases of actual and threatened violence that has surrounded the closure. If he does not do that, he is doing his constituents a grave disservice. Secondly, will he join me in condemning the fact that at one stage a large deputation of opponents to the closure—they have the right to be heard—forcibly detained the regional chairman of the Yorkshire regional health authority, the regional administrator and the regional information officer? I cannot believe that the hon. Gentleman thinks that that was correct.
Thirdly, I call on him to condemn the threatening telephone calls that have been made to some of those


involved in taking the closure decisions. If the hon. Gentleman thinks that democracy and the interests of his constituents are forwarded by threatening telephone calls, he is sorely and sadly mistaken. Fourthly and lastly, I hope that he will condemn the fact that the car of the chairman of Bradford health authority has been vandalised in its garage as a protest.
I hope that the hon. Gentleman condemns those four forms of action. I do not see him dissenting from that condemnation. I do not seek to put words in his mouth—

Mr. Madden: rose—

Mr. Patten: I must give way, as I have been referring to the hon. Gentleman.

Mr. Madden: This has been a litany of the most extraordinary allegations, all of them, except the last, completely new to me. I should have thought that there was no sign of who was responsible for damaging the car. The Minister appears to be setting up a smokescreen to obscure matters and to allow him to leave the debate without answering the questions which are central to it. What will happen to the patients at Thornton View hospital? What money is being made available to modify Shipley hospital? Will the Minister confirm that, if Shipley hospital becomes a community geriatric unit, it will result in a net loss of more than 40 beds in Bradford district? They are the questions that the people of Bradford want answered rather than to hear the Minister indulging in hearsay allegations and making remarks of the sort that he has, which are wholly unfounded. If there is evidence about any of the matters to which he has referred, surely police inquiries should have been made and those responsible found, brought to court and convicted if guilty.

Mr. Patten: To talk of smokescreens and unsubstantiated allegations is a case, if I am guilty, of the pot calling the kettle black, given the dreadful smears that the hon. Gentleman chose to read out about the conduct of my right hon. and learned Friend the Minister for Health, myself and my hon. Friend the Member for Shipley. It is clear that the hon. Gentleman sings one song in the House and another in his constituency. In the five minutes that I have available let me address myself to the points that the hon. Gentleman made.
Services provided by the health authority for the elderly in Bradford are chiefly concerned with the prevention of long-term illness and disability, and quite correctly. It is the health authority's policy to ensure that old people are maintained in the best possible health, whenever possible at home, and to avoid unnecessarily prolonged stays in hospital. It will be the aim of the authority in future years to increase the number of beds of district general hospital sites, thereby making specialist services available for the acute care of the increasingly elderly and frail to whom the hon. Gentleman referred.
The quality of hospital provision for the elderly has improved considerably in recent years in Bradford. In January 1983, for example, a 30-bed ward for the

assessment of elderly patients was opened at St. Luke's hospital, increasing the number of geriatric assessment beds to 88 at that hospital. There are improved staffing levels and facilities for rehabilitation and assessment.
The change in service philosophy that has occurred in recent years has resulted in a decrease in demand for geriatric beds. We serve patients and their demands, not buildings and the demands o f those who work in them, nor indeed the demands of Ministers. In Bradford there has been a decrease in demand for geriatric beds that is clearly demonstrated by occupancy levels.

Mr. Madden: The demand is going up.

Mr. Patten: The decrease in demand is at the root of the hon. Gentleman's arguments. Between 1977 and 1982, there was little overall change in the number of beds available to geriatricians for the treatment of their patients, yet that period saw an increase of over one quarter of the number of geriatric in-patients treated, while the average number of geriatric beds occupied fell by one eighth. To put it another way, despite the greater services being delivered, the average number of empty beds in the district increased from 21 to 82.
Not just services for the elderly provided by Bradford area health authority have undergone a substantial improvement. When considered in relation to resident populations of more than 64 years of age, the Bradford health authority had more geriatric beds than any other district in the Yorkshire region, with more than one and a half times as many geriatric beds as the national average. Similarly, it has many more nursing staff than other districts, nearly one and a half times as many district nursing staff as the national average helping to look after elderly people. I shall not use emotive phrases like "over-provision". All that I am saying is that Bradford is pretty well provided for in comparison with Yorkshire, as well as in terms of the national averages.
We all know that, while pressure is put on the health service from demographic trends there is a need to look ahead and consider their implications with care. The position at Bradford is not the usual one. Contrary to the pattern found in most localities, the set of population projections in general use for planning in the Yorkshire region shows a reduction of 4 per cent. in the number of Bradford health authority residents who will be over the age of 65 in the next few years. Rather than a population explosion in the next few years, the picture shows the reverse.
Against that background, my right hon. and learned Friend the Minister for Health took the decision about Thornton View hospital. It needs replacing and patients deserve better accommodation, despite the attentions of the staff to provide a homely and caring atmosphere. It was against that background that my right hon. and learned Friend took the decision about Thornton View and Shipley hospitals. I thank my hon. Friend the Member for Shipley for his courtesy in attending the debate tonight.

Question put and agreed to.

Adjourned accordingly at twenty eight minutes past Two o'clock.